Sami Bitumen Technologies Pty Ltd (Migration)

Sami Bitumen Technologies Pty Ltd (Migration) [2023] AATA 4729 (7 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sami Bitumen Technologies Pty Ltd
REPRESENTATIVE:  Ms Tamara Thomas (MARN: 0957622)
CASE NUMBER:  2101137
HOME AFFAIRS REFERENCE(S):          BCC2020/2697391
MEMBER:Karen McNamara
DATE:7 December 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 07 December 2023 at 11:10am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Engineering Technologist – decision on the papers – Labour Market Testing – genuine attempt to find a suitably qualified Australian citizen or permanent resident – international trade obligation – WTO member country – 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 13 January 2021, to refuse to approve the application by Sami Bitumen Technologies Pty Ltd (the applicant) for 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 is an associated entity of the COLAS Australia Group. The Group consists of three primary activities; Bitumen import and sales, Manufacturing and sale of Binders and Emulsions and Road maintenance work. The applicant supplies bulk bitumen with plants located in Brisbane, Perth, Sydney and Melbourne.
On 24 November 2020, the applicant lodged an application for nomination for the position/occupation Engineering Technologist ANZSCO 233914. 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 Medium-term stream.
On 13 January 2021, the delegate refused the application on the basis that the applicant did not satisfy s.140GBA(3)(d)(i) because the delegate was not satisfied that the applicant made a genuine attempt to find a suitably qualified Australian citizen or Australian permanent resident to fill the position.
The applicant lodged an application for review with the Tribunal on 2 February 2021. The review application was accompanied by a copy of the delegate’s decision.
Having consideration to the totality of evidence before it, the Tribunal considered that it could decide the review in the applicant’s favour without a hearing.
On 7 November 2023, the applicant through their representative, consented to a decision on the papers.
The Tribunal has resolved this matter on the papers.
The Tribunal notes that plentiful evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that:
·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1).
·the nomination was made using the approved form and fee, as per r.2.73(3),(4) and (5);
·the nomination was accompanied by the applicable training contribution charge, as per r.2.73(5A).
·the nomination was made in the Medium-term stream as the nominated occupation of Engineering Technologist (ANZSCO 233914) is a medium term specified skilled occupation in the relevant instrument, LIN 19/048, as per r.2.73(6);
·the applicant identified the nominee Ms Annery Dayana Palacios Puentes in the nomination, as per r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nominating business, as per r.2.73(9);
·the nomination includes disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act: r.2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator or an associated person.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
Departmental records indicate that the applicant was most recently approved as a standard business sponsor on 31 January 2018 to 31 January 2024, therefore the agreement is valid. The Tribunal is therefore satisfied that the applicant is a standard business sponsor.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
For these reasons, the Tribunal finds that the requirements of r.2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
The Department’s records indicate that the nominee, Ms Annery Dayana Palacios Puentes has never held a Subclass 457 or 482 visa.
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Engineering Technologist (ANZSCO 233914) is specified in the Medium-term skilled occupation list in LIN 19/048.
The Tribunal is satisfied that the nominated occupation is not precluded by an inapplicability condition (or ‘caveat’) specified in LIN 19/048.
For these reasons the requirements of r.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.
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. The intention of reg 2.72(10)(a) is to ensure that positions nominated under this provision are in skilled occupations and are genuinely needed by the nominating employer.[1]
[1] Explanatory Statement to SLI 2013, No 146, Attachment B, p.34.
The Tribunal considers that r. 2.72(10)(a) is a determination of not only whether or not, the position in question is genuine in the sense that the position exists, but also whether the position really is what it purports to be. In terms of the latter, the Courts have confirmed that the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor.[2] 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] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34] In Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court 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.
The Tribunal considers there is no single test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering the qualitative assessment (as per Cargo), the particular facts and circumstances of the matter and the actual tasks and duties performed and described as the nominated occupation.
In undertaking its assessment of whether the position associated with the nominated occupation is genuine, the Tribunal has considered a number of factors, including the tasks performed by the nominee, the primary activities of the business and the scale of those activities, the recruitment/employment history of the position, the operating environment in which the position functions and the financial capacity of the business to support the position.
The Tribunal has considered the ANZSCO occupational dictionary with regard to the occupation of Engineering Technologist (ANZSCO 233914). ANZSCO states in relation to the occupation of Engineering Technologist as follows:
2339 Other Engineering Professionals
This unit group covers Engineering Professionals not elsewhere classified. It includes Aeronautical Engineers, Agricultural Engineers, Biomedical Engineers, Engineering Technologists, Environmental Engineers and Naval Architects / Marine Designers.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Registration or licensing may be required.
Occupations:
- 233911 Aeronautical Engineer
- 233912 Agricultural Engineer
- 233913 Biomedical Engineer
- 233914 Engineering Technologist
- 233915 Environmental Engineer
- 233916 Naval Architect / Marine Designer
- 233999 Engineering Professionals nec
233914 Engineering Technologist
Analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects. Registration or licensing may be required.
Skill Level: 1
Specialisations:
- Biomedical Engineering Technologist
- Industrial Engineering Technologist
- Mining Engineering Technologist
- Safety Engineering Technologist
·Structural Engineering Technologist
The Tribunal is satisfied on the evidence before it, including the nominee’s position description and explanation of job requirements, that that the tasks of the position are commensurate with the occupation as described as per ANZSCO and that there is a business need for the position, which supports that the position associated with the occupation of Engineering Technologist is genuine.
In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s operational requirements, its size and activities, financial position, the tasks to be undertaken in the position, the nominee's experience, qualifications, and employment history with the applicant.
Accordingly, in consideration of the evidence before it, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and it finds that the requirements of reg 2.72(10)(a) are met.
The Tribunal accepts from the material provided, including the nominee’s contract of employment dated 24 August 2023, Income Statements, and payroll records that the position is a full time one. Accordingly, it finds that r.2.72(10)(b) is met.
As the criteria in both rr.2.72(10)(a) and (b) are satisfied, accordingly the requirements in r.2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the relevant instrument IMMI 18/035 (the Tribunal is satisfied that the nominated occupation in this case is not specified in the relevant written instrument). In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)). In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.
The applicant has provided to the Tribunal an employment contract signed and dated by the employer and nominee on 24 August 2023.
For these reasons the requirements of r.2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. 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 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: regs 2.72(15)(d) and 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).
The Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings for the 2022/23 financial year was $56,656 plus superannuation. As this amount is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.
Evidence before the Tribunal supports that the applicant determined the annual market salary rate by way of reference to the applicant’s internal salary grading and external benchmarking. Internal grading data shows the salary range between $54,000 to $75,000 with a median of $63,000.
In support of reference to external benchmarking the applicant has provided advertisements for similar positions and consideration of industry salary survey information, including job advertisements and industry salary survey information on Seek, Jora and PayScale recruitment websites. The advertisement on Jora lists the salary range between $65,000 to $75,000 per annum. Seek lists the salary range between $70,000 to $90,000 per annum. Payscale notes the salary range between $52,000 to $120,000 per annum, with median of $74,000 per annum.
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation ($55,000) has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15)(c) are met.
This amount is not less than the Temporary Skilled Migration Income Threshold specified in the relevant instrument for r.2.72(15)(b). Relevant to this matter at the time this application was lodged on 24 November 2020, IMMI 18/033 specified this as $53,900. The Tribunal is satisfied that the annual market salary rate exceeds the relevant TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.

Information before the Tribunal including the nominee’s Contract of Employment signed and dated 24 August 2023, specify the salary is $72,450 per annum. The nominee’s Income Statement for 2022/23 financial year show the nominee received gross payments of $56,656. The nominee’s payroll records indicate the nominee took periods of unpaid leave during this period, however the records show the nominee’s payments equate to $72,450 per annum plus superannuation.
Accordingly, the Tribunal finds as per the nominee’s contract of employment, Income Statements, payroll records and bank statements, that the nominee’s annual salary rate will not be less than the annual market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as evidenced in the aforementioned, exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.
Accordingly, the requirements of r.2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
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) does apply.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the employment contract dated 24 August 2023. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
The Tribunal is therefore satisfied that r.2.72(18)(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices. Accordingly, the Tribunal finds that r.2.72(18)(b) is met.
Accordingly, the requirements of r.2.72(18) are met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
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 LIN 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The Tribunal has considered whether the labour market testing condition applies to the applicant, having regard to:
·whether it would be inconsistent with an international trade obligation specified in the relevant instrument of the Register of Instruments: Business Visas - s.140GBA(1)(c); and
·whether the nomination is subject to the major disaster exemption or the skill and occupational exemptions of the Register of Instruments: Business Visas - s.140GBB and 140GBC.
The delegate refused the application on the basis that the applicant did not satisfy s.140GBA(3)(d)(i) because the delegate was not satisfied that the applicant made a genuine attempt to find a suitably qualified Australian citizen or Australian permanent resident to fill the position.
In submissions before the Tribunal, the applicant submits “We understand that the requirement to conduct labour market testing does not apply where Australia has an international trade obligation. Our nominee is a citizen of a Venezuela, a WTO member country since 01 January 1995. Annery has worked in Australia on a continuous basis for over two years, for Colas QLD (an associated entity of SAMI), performing the occupation of Engineering Technologist and it is understood that evidence of LMT in not a requirement for a new nomination.”
The delegate formed their view on the basis of information submitted at the time by the applicant, which did not include evidence to support that the applicant was seeking concessions under the provisions of an international trade agreement. The Tribunal has had the benefit of sighting evidence provided by the applicant at the time of this decision supporting the applicant’s claims LMT would be inconsistent with a specified international trade obligation.
The Tribunal therefore on the basis of this evidence, has formed a different view and accepts the evidence presented by the applicant in addressing the requirements of s.140GBA.
The nominee is a citizen of Venezuela. She has worked in the nominated position on a full-time basis since 3 February 2020. The Tribunal confirms that Item 5 (f) of LIN 21/075 identifies the General Agreement on Trade Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organisation (GATS) as an international trade obligation of Australia. Australia is a party to the GATS by virtue of its membership of the WTO, as is Venezuela.
Having regard to its international trade obligations, the Tribunal finds that under the horizontal section of the GATS, Australia has committed to a LMT exemption for “natural persons who have a specialised knowledge at an advanced level of a proprietary nature of the company’s operations and have been employed by the company for a period of not less than two years”. In this case, the nominee commenced employment with the applicant in October 2019 and has been employed as an Engineering Technologist since 3 February 2020. Based on the evidence before the Tribunal attesting to the applicant’s engineering operational requirements and the nominee’s specialised knowledge, experience and qualifications, the Tribunal is satisfied that she has specialised knowledge at an advanced level of a proprietary nature such that, the obligation under GATS is invoked and the nominated position is LMT exempt.
Therefore, based on the evidence before it, the Tribunal is satisfied that the labour market testing condition does not apply to the applicant in this case.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The Tribunal is satisfied that the applicant is liable to pay the training nomination charge as the application was made on 24 November 2020. 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, at the time of application, the applicant’s business had an annual turnover of more than $10,000,000 and so the base amount is $1,800 (per Item 5(2)(b) of the Migration (Skilling Australians Fund) Charges Regulations 2018). The length of visa approval sought is 4 years. Therefore, the amount due is $7,200.
The applicant has provided the Tribunal with a copy of a receipt dated 24 November 2020 for payment of the relevant training nomination charge in the amount of $7,200. Therefore, the requirements of s.140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Karen McNamara
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)…

[2023] AATA 4729

7 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal