Sarhad Pty Ltd (Migration)

Sarhad Pty Ltd (Migration) [2022] AATA 2062 (4 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sarhad Pty Ltd
REPRESENTATIVE:  Mr Fozail Noor Sukhera (MARN: 0640477)
CASE NUMBER:  1834848
HOME AFFAIRS REFERENCE(S):          BCC2018/4337796
MEMBER:Terrence Baxter
DATE:4 May 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 04 May 2022 at 11:37am

CATCHWORDS
MIGRATION–nomination – no adverse information – position associated with the nominated occupation is genuine – position does not involve mass or standardised production – inapplicability condition does not apply to the nominee’s position – occupation applies to the nominee in accordance with the relevant instrument – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 5.19
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
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 9 November 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Sarhad Pty Ltd, applied for approval on 5 October 2018. The applicant nominated Mr Abdul Wakeel Khan (the nominee) in the position of Baker. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(8)(b) because the delegate found that the occupation does not apply to the nominee in accordance with the relevant instrument specified by the Minister. The delegate found that the position is affected by a restriction specified in the instrument, and that as a result, the nominated occupation is not applicable to the nominee in the position.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 27 November 2018.
The sole director and shareholder of the applicant, Mr Zia Ul Haque, appeared before the Tribunal on 8 February 2022 by video conference to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from the nominee by video conference. Mr Haque appeared before the Tribunal by video conference a second time on 20 April 2022 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearings by video conference. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearings by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted by video conference.
The applicant was represented in relation to the review from 13 November 2019 by its registered migration agent, Mr Fozail Noor Sukhera of Sublime Migration Service. The representative attended the Tribunal hearings by video conference.
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.
Evidence presented prior to the hearing
The applicant produced to the Department of Home Affairs (the Department) the following documents:
a.A position description dated 2 October 2018.
b.A receipt issued by SEEK dated 20 July 2018.
c.The business profile of the applicant.
d.A submission regarding recruitment for the position from Australian Recruiting Group, dated 2 October 2018 accompanied by copies of job advertisements.
e.An invoice issued by SEEK regarding job advertisements dated 29 August 2018.
f.Internal customer order forms of the applicant.
g.An extract of the General Retail Industry Award 2010.
h.Internal daily production and product stock records of the applicant.
i.An advertisement for the position on Jora, accompanied by an invoice for the advertisement dated 23 July 2018.
j.An employment contract of the nominee dated 24 October 2016.
The applicant produced to the Tribunal the following documents:
a.A copy of the delegate’s decision.
b.A copy of the invitation to comment sent to the nominee by the Department dated 9 November 2018.
c.A submission from Mr Haque dated 2 May 2020.
d.A submission regarding a caveat exemption from David Dinnes, General Manager of Brumby’s Bakery, dated 10 June 2019.
e.A submission from the applicant’s accountant dated 7 June 2018.
f.A copy of the business profile of the applicant previously submitted to the Department.
g.Copies of the internal customer order forms previously provided to the Department.
h.An internal weekly product count by item of the applicant.
i.A supplier invoice issued by Manildra Group dated 3 March 2020.
j.An ASIC record of registration for business name for BBH Easy T Shop 10.
k.Financial reports for the 2017 to 2021 financial years.
l.Business activity statements for the period from June 2018 to June 2021.
m.Company tax returns for the 2017 to 2021 financial years.
n.A copy of the advertisement for the position previously provided to the Department.
o.A copy of the submission from Australian Recruiting Group previously provided to the Department.
p.A copy of the position description previously provided to the Department.
q.A resume of the nominee.
r.Notification of the applicant’s approval as a standard business sponsor for the period from 13 September 2018 to 13 September 2023.
s.An organisational chart.
t.A submission regarding a request for priority from the representative dated 22 May 2020.
u.A further submission regarding a request for priority from Mr Haque dated 2 September 2021.
v.Advertisements for the position advertised on Indeed and Gumtree.
w.An ASIC current and historical company extract of the applicant.
x.An ASIC certificate of company registration of the applicant.
y.An International English Language Testing System (IELTS) report of the nominee.
z.Notification of the grant of the nominee’s Subclass 457 visa dated 10 April 2017.
aa.Notification of the grant of the nominee’s Subclass 572 visa dated 4 November 2014.
bb.Market salary research.
cc.An extract of the General Retail Industry Award 2020, effective 1 September 2021.
dd.A copy of the invoice issued by SEEK dated 15 August 2018 previously provided to the Department.
ee.A submission from the applicant’s accountant dated 19 November 2021.
ff.A submission comparing the position to the Australia and New Zealand Standard Classification of Occupations (ANZSCO) occupation.
gg.An organisational chart dated 25 September 2021.
hh.Photos of the nominee at work.
ii.Photos of the business premises.
Evidence presented at the hearing regarding the applicant’s operations
Mr Haque gave evidence regarding the business operations of the applicant. He stated that the applicant operated a bakery from premises situated at 514 Christine Avenue, Robina, Queensland. He said that the applicant had been operating since May 2016 and that this was the only business conducted by the applicant. He stated that the applicant employed the nominee as a full-time baker, and also employed one part-time baker, one store manager and three or four casual retail assistants.
The nominee gave evidence of his employment in the position and the tasks performed by him in that position.
Mr Haque’s submission to the Tribunal dated 2 May 2020 confirms that the business operates as a Brumby’s Bakery franchise from Retail Food Group.
Evidence presented after the hearing
After the hearing, the applicant produced to the Tribunal the following documents:
a.A submission from the applicant’s accountant regarding salaries and the wage award, dated 14 February 2022.
b.A further extract of the General Retail Industry Award 2010.
c.A payslip of the nominee from 4 February to 10 February 2022.
d.A payslip of a baker/pastry chef employed by the business from 4 February to 10 February 2022.
e.A copy of the employment contract of the nominee dated 24 October 2016 previously produced to the Department.
f.A letter addressed to the nominee regarding renewal of his employment contract, dated 25 October 2020.
g.A submission from the representative regarding market salary research, dated 20 February 2022.
h.Updated market salary research.
i.A further submission from the representative regarding market salary research, dated 26 April 2022.
j.A Market Salary Rate report including job advertisements, a report from the platform PayScale, a submission from the applicant’s accountant dated 26 April 2022, a copy of the nominee’s work roster and an extract from the relevant award.
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.
Regulation 2.73 application requirements
Reg 2.73 applies in relation to a person who is nominating a proposed occupation under s 140GB(1)(b) of the Act in relation to any of the following (the nominee):
a.A holder of a Subclass 457 (temporary work (skilled)) visa;
b.A holder of a Subclass 482 temporary skill shortage visa;
c.An applicant or a proposed applicant for a Subclass 482 temporary skill shortage visa.
As the applicant has nominated a proposed occupation in respect of the holder of a Subclass 457 (temporary work (skilled)) visa, the requirements of this regulation must be met. Regulation 2.73(2) provides that, for the purposes of s 140GB(3) of the Act, the applicant may nominate a proposed occupation in accordance with the process set out in the regulation.
The requirements for nomination are:
a.Regulation 2.73(3) – the nomination must be made using the Internet.
b.Regulation 2.73(4) – the nomination must be made using the form specified by the Minister in the relevant instrument.
c.Regulation 2.73(5) – the nomination must be accompanied by the relevant fee.
d.Regulation 2.73(5A) – the nomination must be accompanied by the relevant nomination training contribution charge.
e.Regulation 2.73(6) – the occupation must be nominated in the Short-term stream.
f.Regulation 2.73(8) – the nomination must identify the nominee.
g.Regulation 2.73(9) – the name of the occupation and the corresponding six-digit code specified in the relevant instrument must be provided as part of the nomination.
h.Regulation 2.73(10) – depending on whether it would be inconsistent with Australia’s international trade obligations, the proposed period of stay must be between one and four years.
i.Regulations 2.73(12), (13) and (14) – certain certifications are provided with the nomination.
Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met.
For these reasons, the requirements of reg 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 that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any 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.
The Department’s records confirm the applicant was approved as a standard business sponsor from 18 September 2018 for five years.
For these reasons, the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO of the Act
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty).
There is no evidence before the Tribunal that there is any debt due by the applicant for the recovery of any nomination training contribution charge or late payment penalty.
For these reasons, the requirements of reg 2.72(5A) are met.
Listing family members of nominee
Regulation 2.72(6)(a) requires that, if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position, the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee. Regulation 2.72(7) provides that failure to list relevant family members may be disregarded if it is reasonable in the circumstances to do so.
The records of the Department confirm that, on the date of the application (5 October 2018), the nominee held a Subclass 457 visa, which was issued on 10 April 2017 to have effect until 10 October 2018. Accordingly, the applicant must comply with reg 2.72(6)(a).
The records of the Department also confirm that no other persons were granted Subclass 457 visas as a family member of the nominee. Accordingly, the applicant was not required to list any other persons on the nomination.
For these reasons, the requirements of reg 2.72(6) are met.
As the requirements of reg 2.72(6) are met, it is not necessary to consider disregarding non-compliance under reg 2.72(7).
Specified occupation
Regulation 2.72(8)(a) requires that, if the nominated occupation is in the Short-term stream, the occupation and its six-digit code must correspond to an occupation and six-digit code specified in the instrument in force under reg 2.72(9) at the time the nomination is made. Regulation 2.72(8)(b) requires that the occupation must apply to the nominee in accordance with the instrument.
Regulation 2.72(9) specifies that 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 six-digit ANZSCO code for the occupation; or
ii.if there is no six-digit ANZSCO code for the occupation - a 6-digit code for the occupation; and
c.If there is no six-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.
The relevant instrument is IMMI 18/048.
The occupation proposed by the applicant was Baker, with the six-digit ANZSCO code 351111. This occupation and six-digit code correspond to the occupation of Baker and its six-digit code specified in the instrument as a short-term skilled occupation. Accordingly, the requirement in reg 2.72(8)(a) is met.
Does the occupation apply to the nominee in accordance with the instrument?
IMMI 18/048 provides that the occupation of Baker does not apply to a nominee if certain inapplicability conditions apply. In this case the inapplicability conditions are:
The position relates to mass or standardised production (as opposed to specialist production), including the following:
(a) a position based in a franchise or factory
(b) a position that:
(i) involves full or partial production of food product for distribution to another location; or
(ii) predominantly involves the use of preprepared food product from another location.
Based on the information provided to the Department, the delegate found that the position was affected by a restriction specified in the relevant instrument and that, as a result, the nominated occupation was not applicable to the nominee in the position. The delegate referred to a submission from the applicant that the business was a specialty bakery store and not for mass production but found that the applicant had not provided sufficient evidence to address this statement.
Mr Haque made a written submission to the Tribunal dated 2 May 2020 addressing this requirement. He listed the various types of bread and sweets sold by the applicant’s business and provided details of tasks performed by bakers in similar businesses. Mr Haque stated that the applicant’s business model did not operate like some other franchises where mass-produced or standardised items are bought (or quickly prepared by the franchisee without professional skills) and sold on the counter.
Mr David Dinnes, the General Manager – Brumby’s Bakery, from the franchisor, Retail Food Group, issued a statement dated 10 June 2019 regarding the inapplicability condition. He stated that experienced trade qualified bakers are the cornerstone of the operation of each franchised outlet and are focused on creating an array of baked products from scratch every day. He stated that years of experience have shown the franchisor that only qualified bakers possess the required expertise to deliver the over 200 products sold in the franchised stores. He stated that this situation applied in the case of the applicant’s business and submitted that the inapplicability condition did not apply in this instance.
The applicant provided to the Tribunal a job description for the position and a detailed comparison between the tasks in ANZSCO for the Unit Group Bakers and Pastrycooks and the tasks performed by the nominee in the position.
At the hearing, Mr Haque stated that the applicant prepared bread and sweet products on-site from scratch. He said that some products, for example pies and sausage rolls, were not prepared on site but that these products represented approximately 5% only of the applicant’s total turnover. He said that customers preferred fresh bread and other products, knowing that they had been made on site.

The nominee gave evidence regarding the tasks performed by him in the business. He was not present in the hearing when the evidence of Mr Haque was given. Having regard to the terms of the inapplicability condition relating to the use of unprepared food product from another location, the Tribunal asked the nominee regarding the use of unprepared product. He stated that the business baked different kinds of bread and pastries and that 90% of the product sold in the store was produced in the store daily. He described at length the process of preparing bread for baking and the baking process. He gave detailed evidence of the necessity that the dough be properly kneaded and of the different times that dough was to be rested having regard to the ambient temperature in the bakery.
The Tribunal has considered the Department’s policy in relation to the inapplicability condition contained in its Procedures Advice Manual (PAM3). The policy states that positions which are described in the condition are not automatically excluded by the condition and that consideration must be given to determine whether the baker’s position involves mass/standard production or specialised production. The policy further states that the inapplicability condition is designed to ensure that in the context of this occupation, employer-sponsored skilled visa programs continue to be used for skilled baker positions only – that is, positions where the nominee is involved in preparing and baking bread products from scratch, as opposed to simply mixing/cooking pre-prepared products, baking a limited range of mass-produced non-specialist products or operating and/or cleaning baking machinery.
The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.
The delegate’s decision includes reference to the franchisor’s website and specifically to information on the website regarding Training and Support, which states that franchisees do not require prior baking knowledge. The delegate appears to have relied on this information in reaching a decision to refuse the nomination. The Tribunal takes the view that, while it may be claimed that prior baking knowledge is not required to become a Brumby’s franchisee, this does not mean that qualified bakers are not required in the stores.
According to the ANZSCO classification for the occupation of Baker, this is a Skill Level 3 occupation, requiring a qualification of AQF Certificate III including at least two years on-the-job training or AQF Certificate IV. The Tribunal notes that the nominee holds a Certificate IV in Advanced Baking.
The Tribunal notes that the nominated position is based in a store operating under a franchise arrangement. However, the Tribunal has carefully considered whether the position does involve mass or standardised production as opposed to specialist production. Having regard to all the evidence, including the oral evidence given at the hearing, the Tribunal is satisfied that the position does not involve mass or standardised production and that accordingly, the inapplicability condition does not apply to the nominee’s position. The Tribunal is satisfied that the occupation applies to the nominee in accordance with the relevant instrument. Accordingly, the requirement in reg 2.72(8)(b) is met.
For these reasons, the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30 (Cargo First), 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.
In considering this requirement, the Tribunal has had regard to the submission from Mr Haque dated 2 May 2020, referred to in paragraph 42 above. In that submission, Mr Haque stated that the position of a full-time baker is crucial for the survival and regular operation of the applicant’s business. He said that the nominee was employed in the position on a part-time basis from October 2016 and on a full-time basis from April 2017. He said that the applicant’s business would suffer and eventually close down if the applicant stopped employing an on-site baker for specialised product production. The applicant provided details of the range of bread and sweet products produced in the store, together with photographs of the nominee performing his duties in the store.
At the hearing, Mr Haque stated that the position of Baker was desperately needed in the store. He said that the job was not a matter of simply following recipes and that the tasks of the role could not be performed by someone who merely possessed general cooking skills. He said that all Brumby’s franchises have at least one full-time baker. He said that the applicant had always employed either two full-time bakers or one full-time and one part-time baker. He said that, at the present time, the applicant employed two full-time bakers including the nominee.
The ANZSCO classification for Bakers and Pastrycooks states that the tasks for these occupations include:
·     checking the cleanliness of equipment and operation of premises before production runs to ensure compliance with occupational health and safety regulations
·     checking the quality of raw materials and weighing ingredients
·     kneading, maturing, cutting, moulding, mixing and shaping dough and pastry goods
·     preparing pastry fillings
·     monitoring oven temperatures and product appearance to determine baking times
·     coordinating the forming, loading, baking, unloading, de-panning and cooling of batches of bread, rolls and pastry products
·     glazing buns and pastries, and decorating cakes with cream and icing
·     operating machines which roll and mould dough and cut biscuits
·     emptying, cleaning and greasing baking trays, tins and other cooking equipment.
The nominee’s job description provides that nominee’s main duties are:
1. Prepare and produce quality products in accordance with Franchisor's (Brumby's) Procedures, standards, manuals and operational policies. It will generally include following set of tasks and duties but certainly is not limited to followings (sic);
2. Kneading, maturing, cutting, moulding, mixing and shaping dough for breads, cakes, and patisseries from scratch.
3. Preparing bakery's core products not limited to breads, cakes, pies, pastries etc.
4. Checking the quality of raw materials and weighing ingredients
5. Operating machines which roll and mould dough and associated products while focus being on consistency
6. Monitoring oven temperatures and product appearance to determine baking times and ensure quality at all times
7. Checking the cleanliness of equipment and operation of premises before production runs to ensure compliance of franchisee obligations well aligned with Occupational health and safety regulations
8. Emptying, cleaning and greasing baking trays, tins and other cooking equipment
9. Coordinating the forming, loading, baking, unloading, de-panning and cooling of batches of breads, buns, rolls, and pastry products
10. On-the-job training and assisting other team members.
11. May prepare the list of raw materials to be ordered.
In Cargo First the Federal Circuit Court of Australia was considering reg 2.72(10)(f) of the Regulations (as it was at that time) and considered the issue as meaning “determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be”. In short, there is no pre-determined test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering what the tasks and duties associated with the position and described as the occupation for the nomination are, and whether the nominee performs those tasks, and the commensurate level of experience of the nominee to perform those tasks.
The Tribunal has considered the Department’s policy in relation to this requirement contained in its Procedures Advice Manual (PAM3). The policy states that circumstances where the genuineness of the position may be queried include:
a.The nominated position may have been created to secure a migration outcome for the nominee.
b.The tasks of the position do not substantially align to the tasks of the nominated occupation as described in ANZSCO.
c.The position may not be consistent with the nature of the business.
The observations regarding the Tribunal’s consideration of the Department’s policy in paragraph 48 above also apply to its consideration of the policy regarding whether the position is genuine. However, the Tribunal considers that it is appropriate to have regard to the circumstances referred to in the policy when considering this requirement. The Tribunal finds that:
a.There is no evidence to suggest that the position has been created to secure a migration outcome for the nominee. Both Mr Haque and the nominee gave evidence that the nominee applied for the part-time position after having seen the vacancy advertised and that he was not previously known to Mr Haque.
b.Having regard to the documentary evidence and the oral evidence at the hearing, the Tribunal is satisfied that the nominee is performing the tasks specified in ANZSCO for a baker.
c.Mr Haque stated that the business operates seven days per week and that the second full-time baker is required for rostering purposes. He also stated that the second full-time baker is engaged several days per week making pastries.
The Tribunal is satisfied that the position associated with the occupation is genuine. Accordingly, the requirements of reg 2.72(10)(a) are met.
The nominee’s employment contract states that he is to be employed full-time. Both Mr Haque and the nominee gave evidence that the nominee has been employed full-time since April 2017. The Tribunal is satisfied that the position associated with the occupation is full-time. Accordingly, the requirements of reg 2.72(10)(b) are met.
For these reasons, the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that, if the occupation is nominated for a Subclass 482 visa in the Short-term stream, 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 an instrument made under reg 2.72(13) (IMMI 18/035). In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream and the applicant is not an overseas business sponsor. The Tribunal finds that the nominated occupation of Baker is not specified in the relevant instrument, IMMI 18/035 and accordingly, reg 2.72(11) must be met.
The employment contract provides that the nominee will be engaged as an employee by the applicant as employer. A copy of the contract signed by the applicant and the nominee has been given to the Minister.
For these reasons, the requirements of reg 2.72(11) are met.
As the applicant is not an overseas business sponsor, it is not necessary to consider reg 2.72(12).
Language test requirements
Regulation 2.72(14) requires that, if the occupation is nominated for a Subclass 482 visa in the Short-term stream and if the nominee holds a Subclass 457 visa or Subclass 482 visa, and if the Minister has requested the applicant to provide evidence that the nominee satisfies the language test requirements, the applicant has provided evidence to the Minister that the nominee satisfies relevant language test requirements.
There is no evidence before the Tribunal that the Minister has requested the applicant to provide evidence that the nominee satisfies the language test requirements.
For these reasons, reg 2.72(14) is not applicable in this instance.
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 instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·The rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a).
·The nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise.
·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 that the nominee’s annual earnings are $56,500. The specified amount of annual earnings in instrument IMMI 18/033 is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
Regulation 2.72(15)(c) – has the applicant determined the annual market salary rate for the occupation in accordance with the instrument?
Mr Haque gave evidence that the applicant does not have an Australian worker performing equivalent work at the location. The organisational chart confirms that the applicant employs a Baker/Pastry Chef, but the applicant produced evidence that the other employee has been assessed at a higher skill level and is therefore not performing equivalent work.
The instrument provides that, in these circumstances, where there is an award applicable to the nominated occupation, the annual market salary rate is the annual earnings of an equivalent worker specified in the award. The applicant has provided evidence that there is an award applicable to the nominated occupation, namely the General Retail Industry Award 2020. The applicant has produced evidence that the annual earnings of an equivalent Australian worker, calculated by reference to the nominee’s work roster and the provisions of the award, amount to $1,086.55 per week, equivalent to $56,500 per annum. The Tribunal is satisfied that the applicant has determined the annual market salary rate in accordance with the instrument at $56,500 per annum.
For these reasons the requirements of reg 2.72(15)(c) are met.
Regulation 2.72(15)(d) – is the annual market salary rate, excluding any non-monetary benefits, for the occupation, as determined, less than the TSMIT?
The TSMIT specified in IMMI 18/033 is $53,900 per annum. The annual market salary rate of $56,500 as determined by the applicant in accordance with the instrument exceeds the TSMIT.
For these reasons the requirements of reg 2.72(15)(d) are met.
Regulation 2.72(15)(e) – will the nominee’s annual earnings be less than the annual market salary rate for the occupation as determined?
The nominee’s annual earnings will be $56,500. These annual earnings are not less than the annual market salary rate of $56,500 as determined by the applicant.
For these reasons, the requirements of reg 2.72(15)(e) are met.
Regulation 2.72(15)(f) – will the nominee’s annual earnings, excluding any non-monetary benefits, be less than the TSMIT?
The nominee’s annual earnings, excluding any non-monetary benefits, will be $56,500. These annual earnings exceed the TSMIT of $53,900.
For these reasons the requirements of reg 2.72(15)(f) are met.
Regulation 2.72(15)(g) – is there information known to Immigration that indicates that the annual market salary rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation?
The applicant provided evidence that the annual market salary rate is in accordance with the relevant award. The applicant also produced evidence from the platform PayScale that the average base salary payable to a Baker in Australia ranges between $40,000 and $65,000 per annum, with an average of $54,128. The applicant also produced copies of job advertisements for the position of Baker in various locations with advertised salaries ranging from $50,000 to $65,000 per annum.
There is no evidence before the Tribunal to indicate that the annual market salary rate for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation.
For these reasons the requirements of reg 2.72(15)(g) are met.
Employment conditions
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 renewed employment contract provides that the applicant will pay in respect of the nominee superannuation equivalent to the minimum level of superannuation support required by the relevant legislation. The contract further provides that the nominee is entitled to leave in accordance with the contract. There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than earnings) will be less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the location.
For these reasons the requirements of reg 2.72(18)(a) are met.

There is no information before the Tribunal which indicates that the applicant has engaged in discriminatory recruitment practices.
For these reasons the requirements of reg 2.72(18)(b) are met.
Labour market testing
Section 140GBA of the Act requires a person who is a standard business sponsor and who nominates an occupation and associated position to fulfil the ‘labour market testing (LMT) condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, LMT means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the LMT condition, the testing must be undertaken within a prescribed period as set out in 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 LMT;
·The LMT 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 LMT must have been undertaken after those events; and
·The Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The nominee is a national of the Republic of Pakistan. There is no free trade agreement between Australia and Pakistan and accordingly the Tribunal finds that it is not inconsistent with any international trade obligation of Australia, determined under instrument LIN 21/075, to require the applicant to satisfy the LMT condition. The Tribunal further finds that the applicant is not exempt from satisfying the LMT condition under the skill and occupational exemption (s 140 GBB) or the major disaster exemption (s 140GBC). The applicant is therefore required to comply with the LMT requirement.
The nomination was lodged on 5 October 2018. The manner in which LMT must be undertaken is determined in instrument LIN 18/036.The applicant submitted a comprehensive LMT report prepared by Australian Recruiting Group. Based on the evidence, the Tribunal is satisfied that:
·The LMT was undertaken for a period of 28 days from 25 June 2018.
·The nominated position was advertised in the English language in at least two advertisements that were commissioned by the applicant on recruitment websites within national reach in Australia.
·The advertisements included the title and a description of the position, the skills or experience required for the position, the name of the applicant as approved sponsor and the salary for the position.
·Applications for the advertised position were accepted for at least four weeks from when the advertisement for the position was first published.
For these reasons, the Tribunal is satisfied that the LMT was undertaken in the manner determined in the relevant instrument.
The evidence that must accompany the nomination is also determined in instrument LIN 18/036. The required evidence is a copy of the advertising material used to advertise the position. The records of the Department confirm that the required evidence accompanied the nomination.
The nomination application states that no Australian citizens or Australian permanent residents were made redundant or retrenched from positions in the nominated occupation by the applicant within four months prior to the nomination. There is no evidence before the Tribunal that any such redundancies or retrenchments occurred.
Based on the evidence before the Tribunal, including the LMT report, the Tribunal is satisfied that no suitably qualified and experienced Australian citizen or Australian permanent resident or suitably qualified and experienced eligible temporary visa holder is readily available to fill the nominated position.
For these reasons, the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) 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 nomination application was lodged after 12 August 2018 and therefore the requirements of s140GB(2)(aa) must be met. The records of the Department confirm that the appropriate nomination training contribution charge was paid by the applicant.
For these reasons 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.
Terrence Baxter
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)…

[2022] AATA 2062

4 May 2022

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