SE Equipment and Traffic Pty Ltd (Migration)

SE Equipment and Traffic Pty Ltd (Migration) [2023] AATA 3226 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SE Equipment and Traffic Pty Ltd
REPRESENTATIVE:  Mr Nikolic Dushan
CASE NUMBER:  2001738
HOME AFFAIRS REFERENCE(S):          BCC2019/6750757
MEMBER:George Hallwood
DATE:11 September 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 11 September 2023 at 3:09pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – management accountant – inhouse payroll services to group of companies – annual market salary rate determined in accordance with specified method – occupation not listed in specified instrument – Payscale salary survey shows average base salary – nominee’s annual earnings not less than this – combined hearing of nomination and visa reviews – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB(1)(b), (2), 140GBA
Migration Regulations 1994 (Cth), rr 1.03, 2.57A, 2.72(15), 2.73
CASE
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 10 January 2020 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 applied for approval on 18 December 2019. 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 Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(15) because they were not satisfied that the annual market salary rate (AMSR) was determined in accordance with the method specified in the relevant legislative instrument.
Mr Dale Barron, COO of SE Equipment and Traffic Pty Ltd appeared before the Tribunal on behalf of the applicant on 29 August 2023 to give evidence and present arguments. As this was a combined hearing with the related visa application, the Tribunal also received oral evidence from Mr Carmelo Abadejos De Mesa, case number 2004991. The hearing was held by videolink. Mr Reardon, HR Manager of SE Equipment and Traffic Pty Ltd, also appeared before the Tribunal to give evidence. The hearing was held by videoconference.
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.
Having considered the nomination application the Tribunal finds:
·The person, SE Equipment and Traffic Pty Ltd, is nominating an occupation, Management Accountant, under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa: reg 2.73(1);
·The nomination dated 18 December 2019 was made using the approved form and fee: regs 2.73(3), (4) and (5);
·The nomination dated 18 December 2019 was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);
·The nomination is in the Medium-term stream as the occupation is a medium and long term strategic skills specified occupation in the instrument LIN 19/048: reg 2.73(6);
·The applicant, SE Equipment and Traffic Pty Ltd, has identified the nominee, Mr De Mesa, in the nomination: reg 2.73(8);
·The nomination includes the name of the occupation, Management Accountant, and the corresponding 6-digit code - 221112, the location at which the occupation will be carried out, Moonah Tasmania, the proposed period of stay for a visa granted on the basis of the nomination, up to 2 years, the annual turnover for the nomination, and other specified information in the instrument LIN 19/048: reg 2.73(9);
·The nomination dated 18 December 2019 includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);
·The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);
·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; the qualifications (Master of Professional Accounting, Master of Business Administration) and several years of experience of the nominee are commensurate with those specified for the occupation in ANZSCO (ANZSCO lists the Accountant Unit Group as a Skill Level 1 occupation requiring a skill level commensurate with a bachelor degree or higher) and, as the occupation is not exempt as it is not a specified occupation in LIN 19/212, the position is in the person’s business in this case: reg 2.73(14).
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.
In the nomination application of 18 December 2019, the applicant answered “No” to the question relating to whether there was any adverse information about the applicant or an associated person. At the hearing Mr Barron told the Tribunal that he was unaware of any adverse information including information relating to the contravention of Australian laws, insolvency, sponsorship breaches or other circumstances which might reasonably be considered adverse information. There is no information before the Tribunal to suggest otherwise.
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 show that the applicant is approved as a standard business sponsor from 22 July 2019 to 22 July 2024.Therefore, the person making the nomination 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.
At the hearing Mr Barron told the Tribunal that the applicant had no outstanding debts in relation to s 140ZO of the Act, nomination training contribution charges or penalties in relation to the underpayment of such charges. There is nothing before the Tribunal to suggest that there are any such debts.
For these reasons the requirements of reg 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).
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.
For these reasons the requirements of reg 2.72(6) are met.
The instrument IMMI 18/032 identifies the circumstances in which a visa applicant is an exempt applicant in relation to language testing: citizens of and valid passport holders of countries listed in the instrument; completion of at least five years full-time higher education study in English; nominations where the nominee will be working in a diplomatic or consular mission; nominees working in licenced occupations where English language testing of a higher standard than the test scores specified is required to meet the licencing or registration; employees of an overseas based standard business sponsor where the nominee will receive annual earnings of at least $96,400. The applicant is not claiming exemption.
The instrument also sets out the Minister’s requirements for language testing which relevantly to the Medium-term stream includes the PTE Academic test with an overall score of at least 36 and a score of at least 36 for each test component. The test day is not to be more than three years prior to the applicant providing evidence of their test score. On 22 February 2019 Mr De Mesa achieved an overall score of 77 with at least 52 for each test component. Therefore, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223.
For these reasons the requirements of reg 2.72(14) are met.
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 nominated occupation in this case is Management Accountant with the 6-digit code of 221112. This corresponds to an occupation and 6-digit code in the medium and long-term strategic skills list in the instrument LIN 19/048. This occupation is subject to three applicability circumstances - 6, 19, and 21:
6: The position is a clerical, bookkeeper, or accounting clerk position.
19: The position is in a business that has an annual turnover of less than AUD1,000,000.
21: The position is in a business that has fewer than 5 employees.
The position description provided together supported by organisation chart and financial statements demonstrate to the satisfaction of the Tribunal that the position is that of a management accountant and not a clerical, bookkeeper, or accounting clerk position.
Financial statements for the year ending 2022 supported by tax returns and activity statements demonstrate to the satisfaction of the Tribunal that the position is in a business that has an annual turnover well in excess of $1 million.
The organisation chart supported by the financial statements provided to the Tribunal demonstrate to the satisfaction of the Tribunal that the position is in a business that has at least five employees.
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, 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.
Mr Barron told the Tribunal that SE Equipment and Traffic Pty Ltd provides inhouse payroll services to a group of nine companies. The company tax return for 2022 shows revenue in excess of $4.5 million and salary and wage expenses in excess of $3.5 million. The Tribunal is satisfied that the nature and scale of SE Equipment and Traffic Pty Ltd is consistent with a requirement for a full-time Management Accountant.
The position description provided to the Tribunal reflects the ANZSCO description of the occupation of Management Accountant.
Given the above, the Tribunal is satisfied that the position associated with the nominated occupation is genuine: reg 2.72(10)(a).
The contract of employment dated 1 September 2023 indicates that the employment is full time: reg 2.72(10)(b).
For these reasons the requirements of reg 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 instrument LIN 19/212. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.
Management Accountant is not specified as an exempt occupation in the instrument LIN 19/212 and the applicant is not an overseas business sponsor.
The nominee is currently employed under a written contract of employment by the applicant dated 1 September 2023 with a salary variation increasing the annual base salary to $85,000 (which dated from 28 February 2023) which has been provided to the Minister.
For these reasons the requirements of reg 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 which is relevantly $250,000. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT) which is relevantly $53,900, unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, $250,000, the requirements of reg 2.72(15) must be met.
The nomination application states that the AMSR is $60,225 for a 38 hour week and that this was determined using internal Wage Banding Classifications ranging from band 1 to 6, comparing the position of Management Accountant to that of Administration Manager that they considered to be an equivalent Australian worker in terms of responsibility and skill, albeit the Administration Manager had more experience and paid at $62,000.
‘Annual market salary rate’ is defined in reg 1.03 and requires the nominee to be provided with remuneration and employment conditions that are at least equivalent to the conditions provided to an Australian worker performing the same work at the same location on a full-time basis for a year. The annual market salary rate is the benchmark for assessing the nomination.
An Administration Manager is not listed in the instrument LIN 19/048 as a specified occupation for a subclass 482 visa. The Tribunal is not satisfied on the evidence that an Administration Manager working for the applicant performs the same work as a Management Accountant and therefore would not, on that basis, be satisfied that the calculated AMSR was at least the amount specified in the instrument IMMI 18/033.
In a submission to the Tribunal the applicant provided a copy of a contract of employment between the applicant and another employee who is a Finance Analyst who is paid at $85,000 per annum. Also supplied is a letter stating that the nominee is now being paid $85,000 per annum. Finance Analyst is not listed by the minister in LIN 19/048. Therefore, the Tribunal is not satisfied that Finance Analyst meets the requirements of instrument.
The submission also includes a Payscale salary survey showing that the average base salary for a management accountant in Australia is $81,346. The instrument allows, in the absence of using an Australian equivalent or Award rate, the use of a suitable salary survey. The applicant determined the AMSR is $81,346.
For these reasons the requirements of reg 2.72(15)(c) are met.
The Tribunal is satisfied that the AMSR - $81,346, excluding any non-monetary benefits, for the occupation is not less than the TSMIT - $53,900. For these reasons the requirements of reg 2.72(15)(d) are met.
The nominee’s annual earnings - $85,000 in relation to the occupation will not be less than the rate for the occupation. For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.
Employment conditions
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.
Post hearing the applicant provided a contract of employment dated 1 September 2023 This contract contained a standard set of terms and conditions of employment including the National Employment Standards under the Fair Work Act 2009. Therefore, the Tribunal is satisfied that the nominee’s employment conditions (other than earnings) will be no less favourable than those for the Australian equivalent.
For these reasons the requirements of reg 2.72(18)(a) are met.
At the hearing Mr Barron told the Tribunal that SE Equipment and Traffic Pty Ltd has not engaged in any discriminatory recruitment practices. There is nothing before the Tribunal that suggests otherwise.
For these reasons the requirements of reg 2.72(18)(b) 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 IMMI 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) 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 manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.
Having had regard to the applicant’s submission on labour market testing the Tribunal finds:
·Labour market testing is not inconsistent with an international trade obligation with the Philippines in relation to the occupation Management Accountant. LIN 18/036 – s 140GBA(1)(c); and
·The nomination is not subject to the major disaster exemption or the skill and occupational exemptions IMMI 18/058 – s 140GBB and s 140GBC; and
·labour market testing has been undertaken in the specified period 4 months ending on the day on which the nomination in accordance with the instrument: ss 140GBA(3)(a) and (4);
·labour market testing was undertaken in the manner set out in the legislative instrument: advertised in Australia in English on a recruitment website and including the details specified in the instrument: 140GBA(3)(aa) and (5);
·applications for the advertised position were accepted for at least 4 weeks from when the advertisement was first published;
·the nomination was accompanied by evidence of the labour market testing – ss 140GBA(3)(b)(i) and (6A);
·the applicant identified in oral evidence that there were no recent retrenchments or redundancies – s 140GBA(3)(b)(ii);
·there were no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position – s 140GBA(3)(d).
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 Tribunal is satisfied that the applicant’s nomination was made after 12 August 2018 and therefore the applicant is liable to pay the charge. As the charge was payable when lodging the nomination application, and there is nothing before the Tribunal to suggest that the charge was not paid, the Tribunal is satisfied that the applicant has paid the charge. For these reasons the requirements of s 140GB(2)(aa) are met.
Concluding paragraphs
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.
George Hallwood
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(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 3226

11 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies