Sandringham Yacht Club Inc (Migration)

[2021] AATA 4918

Sandringham Yacht Club Inc (Migration) [2021] AATA 4918 (9 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sandringham Yacht Club Inc

CASE NUMBER:  1831486

HOME AFFAIRS REFERENCE(S):          BCC2018/3378659

MEMBER:Warren Stooke AM

DATE:9 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 9 December 2021 at 12:31pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Chef – labour market testing – evidence of job advertisements – genuine position – actively and lawfully operating a business in Australia – terms and conditions of employment no less favourable – ongoing training obligations – decision under review set aside           

LEGISLATION

Australian Incorporations Act 1981
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration Act 1958, s 140
Migration Amendment (Skilling Australians Fund) Regulations 2018, cl 7602
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 5.42

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 16 October 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 6 September 2018. A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and r.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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy that the labour market testing was undertaken in the required manner and therefore paragraph 140GBA(3)(a) has not been met. Consequently, the applicant was deemed not to have satisfied the labour market testing condition and section 140GBA of the Migration Act.

4. The applicant, represented by Ms Tetlow, the Finance and HR Manager, appeared before the Tribunal on 3 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee for the position of Chef – ANZSCO Code: 351311, Shyamal Niak. 

5. The applicant stated that the organisation had received and read the delegate’s decision, which was provided to the Tribunal with the application for review. The applicant stated that she understood the application was refused on the grounds of meeting the advertising requirements.

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

7. 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

8. 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 r.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.

9. The applicant provided evidence that the Sandringham Yacht Club Pty Ltd was first registered with ASIC on 8 March 2000 and assigned ABN: 28 226 654 426 and registered for GST on 1 July 2000.

10. The applicant provided a Certificate of Incorporation under the Australian Incorporations Act 1981, which was dated 5 December 1986.

11. The applicant provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved on 7 April 2018 and is valid until 7 April 2023.

12. The applicant stated that the yacht club provides on-the -water activities, together with food and beverage in the club house for members and guests.

13. The applicant stated that the nominee commenced as a kitchen hand in 2010 and that he subsequently completed a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management in 2018, as a Sus Chef.

14. The Tribunal was provided with evidence that the nominee satisfied the English language test requirements with a PTE score of 57 that was undertaken on 24 June 2016.

15. The applicant provided evidence that the nominee for the position of Chef – ANZSCO 351311 was assessed by VETASSESS on 26 March 2019, as ‘successful’.

16. The applicant provided evidence of a contract of employment for the nominee dated 17 February 2020 that included a permanent appointment under the nominated award, the Registered and Licenced Clubs Award 2010, and a salary of $63,500 and 9.5 per cent superannuation paid into the Hostplus superannuation fund.

17. The applicant provided evidence of market testing and that the position of Chef for the club was advertised on the following dates:

    a.Seek – between November and December 2017; February and March 2018; and August and September 2018;

    b.Seek - on 30 August 2018;

    c.Indeed - between July and September 2018;

    d.Aus-wide - between Feb and September 2018.

18. The applicant provided the Tribunal with an organisation chart prior to hearing and stated that the organisation has 30 permanent staff.

19. The applicant stated that the nominee was provided with a Fair Work Information Statement at the time of employment, which is also contained in the employment contract.

20. The applicant stated the position required an employee that had experience in ordering; planning; preparation of meals; management of costs; supervision of staff; safe handling of food; preparing recipes; keeping the kitchen clean and tidy; and deal with functions, which require the preparation of up to 200 meals at one time.

21. The applicant provided the Tribunal with financial information pertaining to the business, as follows:

2018	2019	2020
Assets	$15,442,000	$14,564,000	$16,857,000
Liabilities	$4,962,000	$3,931,000	$3,823,000
Equity	$4,834,000	$5,326,000	$6,093,000
Surplus	$162,000	$492,000	$767,000

Nominee Evidence - Shyamal Niak

1. The nominee provided evidence that he undertakes all the tasks and duties as set out in the descriptor for the occupation of Chef – ANZSCO Code: 3513411 and is employed full-time with the Sandringham Yacht Club Pty Ltd as a Chef on a salary of $63,500.

   The Representative

2. The Representative for the applicant provided a detailed chronology of circumstances pertaining to the application and documentary evidence to support the nomination, including correspondence with the Department.

   The nomination must comply with the prescribed process

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

4. The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Shyamal Moghabhai NAIK in the nomination. The nomination includes the location of Sandringham Yacht Club Pty Ltd, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Chef (ANZSCO 351311).

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

   No adverse information known to Immigration

6. 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 rr.1.13A and 1.13B.

7. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in regs 1.13A and 1.13B, known to Immigration about the applicant or an associated person.

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

   Nominator is a standard business sponsor

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

10. The applicant provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved on 7 April 2018 and is valid until 7 April 2023.

11. For these reasons the requirements of r.2.72(5) are met

    Payment of debt mentioned in s.140ZO

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

13. The Tribunal is satisfied that there is no evidence that the applicant has any outstanding debt under s.140ZO.

14. For these reasons the requirements of r.2.72(5A) are met.

    Requirements for existing Subclass 457 or Subclass 482 visa holders

15. 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: r.2.72(6)(a) and r.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): r.2.72(14).

16. As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of r.2.72(6) and r.2.72(14) do not apply.

17. For these reasons the requirements of r.2.72(6) are met.

18. Further, the Tribunal was provided with evidence that the nominee satisfied the English language test requirements with a PTE score of 57 that was undertaken on 24 June 2016 and thereby the nominee satisfies the language test requirements in the relevant instrument that would apply as a nominee for a Subclass 482 visa in the Medium-term stream, as applicable.

19. For these reasons the requirements of r.2.72(14) are met.

    Specified occupation

20. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/051 Specified Occupations. The occupation must also apply to the nominee in accordance with the instrument.

21. The Tribunal is satisfied that IMMI 18/051, in force at the time of application, included the occupation of Chef – ANZSCO Code: 351311 [Item 173].

22. For these reasons the requirements of r.2.72(8) are met.

    Position must be genuine and full-time

23. 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, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

24. The applicant provided evidence through the recent contract of employment, dated 17 February 2020, that the nominee is employed as a full-time Chef – ANZSCO Code: 351311 on a salary of $63,500, plus 9.5 per cent superannuation that is contributed to Hostplus.

25. The duties performed by the nominee, which were confirmed in evidence are consistent with the tasks and duties provided in ANZSCO Code: 351311.

26. For these reasons the requirements of r.2.72(10) are met.

    Employment under contract

27. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/051. 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)).

28. In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.

29. The applicant provided evidence through the recent contract of employment that the nominee is employed as a full-time Chef – ANZSCO Code: 351311 on a salary of $63,500, plus 9.5 per cent superannuation that is contributed to Hostplus.

30. For these reasons the requirements of r.2.72(11) are met.

    Annual earnings

31. 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 r.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: r.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: r.1.03.

    ·the rate, excluding any non-monetary benefits (as defined in r.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: r.2.72(15)(d) and r.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 r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);

    ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.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: r.2.72(15)(f) and r.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: r.2.72(15)(g).

32. The Temporary Skilled Migration Income Threshold (TSMIT) is currently AUD53,900 and the nominee is currently paid $63,500 for the nominated occupation of Chef – ANZSCO Code: 351311.

33. Further, the Tribunal is satisfied that the wage rate for a Chef, as prescribed in the Registered and Licenced Clubs Award 2010, is less that the salary of $63,500 that is paid to the nominee by the applicant.

34. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.

    Employment conditions

35. 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.

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

37. For these reasons the requirements of r.2.72(18)(a) and r.2.72(18)(b) are met.

    Labour Market Testing

38. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

39. 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: LIN 18/036. In addition:

    ·the nomination must be accompanied by the evidence specified in s.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.

40. 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: LIN – 18/036 that includes the following requirements:

    “8        The advertisement of a nominated position

    (1)    This section is made under subsection 140GBA(5) of the Act.

    Language

    (2)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.

    Method

    (3)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements of this section:

    (a)    on a recruitment website with national reach in Australia; or

    (b)   in print media with national reach in Australia; or

    (c)    on radio with national reach in Australia; or

    (d)   if the approved sponsor is an accredited sponsor - on the approved sponsor’s website.

    (4)    The following details of the position must all be included in the advertisement:

    (a)    the title or a description of the position;

    (b)   the skills or experience required for the position;

    (c)    the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;

    (d)   the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.

    Duration

    (5)    For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:

    (a)    print media;

    (b)   radio;

    (c)    website.”

1. The Tribunal is satisfied that the applicant has undertaken ‘Labour Market Testing’ in accordance with LIN – 18/036 that applied at the time of the engagement of the nominee, which was supported by evidence provided to the Tribunal prior to hearing.

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

   Nomination training contribution charge

3. 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, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. 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).

4. The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet training Benchmark A or training Benchmark B for the period of engagement of the nominee, as the employment nomination was submitted after 12 August 2018.

5. As set out in paragraph 44 above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore the applicant does not have an obligation to meet the training benchmarks in this current year of its most recent standard business sponsorship approval.

6. Further, the Tribunal accepts that given that Sandringham Yacht Club Pty Ltd was most recently approved as a standard business sponsor of the nominee on 11 February 2021 and was not required under the legislation in force, at that time, to either demonstrate it had met any specific training commitments or commit to meeting ongoing training obligations in connection with the approval of its sponsorship application, it is reasonable to disregard the requirements of the Regulation, as they were and accept that the applicant has met the training obligations.

7. For these reasons the requirements of s.140GB(2)(aa) are not applicable.

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

   DECISION

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

   Warren Stooke AM
   Member

   
   

   ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   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)…