Semmrak Pty Ltd (Migration)

[2021] AATA 2796

Semmrak Pty Ltd (Migration) [2021] AATA 2796 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Semmrak Pty Ltd

CASE NUMBER:  1816346

HOME AFFAIRS REFERENCE(S):          BCC2018/1893357

MEMBER:Alison Mercer

DATE:17 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 17 June 2021 at 5:40pm

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Chief Executive or Managing Director – genuine position – no response to s 359(2) invitation – no entitlement to a hearing – Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary – small business which operates from a residential unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 360

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 May 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant, Semmrak Pty Ltd (trading as Affordable Driver Training), applied for approval on 30 April 2018. A nomination of an occupation for a subclass 482 visa is made under s.140GB of the Act and r.2.73 of the Regulations. The occupation must be nominated for a subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s.140GBA. In this case, the occupation is nominated for a subclass 482 visa in the Medium-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(a), which required that the position associated with the nomination was genuine. The delegate found that it was not. In reaching this conclusion, the delegate noted that the nominated position was Chief Executive or Managing Director (ANZSCO code 111111), and that the nominee was also the sole director and sole employee of the applicant company. She stated that she was not satisfied that the evidence provided demonstrated that the nomination was lodged to fill a genuine skill shortage (the purpose of the subclass 482 visa category and associated nomination process), rather than to facilitate the grant of a visa for the nominee. The delegate concluded that the weight of the evidence indicated that the primary purpose of nominating this position was to facilitate the stay of the nominee in Australia rather than to fill a genuine vacancy or skill shortage. As one of the subparagraphs of r.2.72 was not met, the delegate refused to approve the applicant’s nomination application.

4. The Tribunal received a review application on 5 June 2018. It was signed on behalf of the applicant by its Managing Director, Mr Muthu Gunasekaran (also the nominee), and was accompanied by a copy of the delegate’s decision and an authority by which Mr Gunasekaran appointed a registered migration agent, Mr Ricky Bustos, to be the applicant’s representative and authorised recipient for correspondence.

5. On 26 April 2021, the Tribunal wrote to Mr Gunasekaran, via the agent, pursuant to s.359(2) of the Act, to invite him to provide updated and current information demonstrating that the applicant met all of the applicable criteria in r.2.72 (not just the criterion that the delegate had found was not met). The Tribunal provided examples of the kinds of information that would assist it to assess the applicant against r.2.72 and requested that the information be provided by 10 May 2021. The Tribunal advised that if it did not receive the requested information (or a request for an extension of time to do so) by 10 May 2021, then the applicant would lose its entitlement to a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the requested information.

6. On the same date, the Tribunal received an email from the agent advising that he no longer worked for the same law firm, and directing the Tribunal to that law firm for further advice.

7. On 29 April 2021, an officer of the Tribunal rang Mr Gunasekaran to seek clarification of whether he wished to appoint a new agent and/or authorised recipient for correspondence. This was followed by an email to him attaching the relevant forms to do so.

8. On 30 April 2021, the Tribunal received notification from Mr Gunasekaran on behalf of the applicant that he had withdrawn his authority for the agent to be the applicant’s representative and authorised recipient for correspondence, and had appointed himself to these roles.

9. On 12 May 2021, the Tribunal re-sent the s.359(2) letter directly to Mr Gunasekaran at the email address provided by him, noting that he had until 26 May 2021 to provide the requested information, and reiterating that the consequences of not providing the requested information (or seeking an extension of time to do so) by the due date included loss of the right to a hearing and the possibility that the Tribunal would proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

10. The Tribunal did not receive any information from the applicant by 26 May 2021. Nor did it receive a request for an extension of time to do so.

11. On 31 May 2021, the Tribunal wrote to the applicant via Mr Gunasekaran to advise that, due to the failure to provide information, or seek an extension of time to do so, by 26 May 2021, the applicant had lost its entitlement to a Tribunal hearing. The Tribunal nevertheless invited Mr Gunasekaran to provide any additional information on behalf of the applicant that he wished the Tribunal to take into account by 15 June 2021, after which the Tribunal would proceed to make its decision on the available evidence.

12. On 16 June 2021, the Tribunal received an email from Mr Gunasekaran stating, ‘Because of the COVID-19 pandemic situation SEMMRAK pty ltd business is under big financial strain. So, the document which you are asking, unfortunately, I am not in the position to provide at this moment.’ On the same date, a Tribunal officer acting on the direction of the Presiding Member, rang Mr Gunasekaran to ascertain whether he wished to withdraw the review application on behalf of the applicant. He indicated that he was uncertain about what he should do. The Tribunal officer advised that the Tribunal was unable to provide review applicants with legal advice.

13. The Tribunal is satisfied that its letter of 26 May 2021 was sent to the email address most recently nominated for correspondence by Mr Gunasekaran on behalf of the applicant, and there is no evidence in the Tribunal’s electronic records that the email was undeliverable or not delivered.

14. The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. As above, no extension request was received in the prescribed period. Nor did the applicant provide comments or a response to the information in the Tribunal’s letter in the prescribed period. Accordingly, the applicant has lost its entitlement to have an authorised officer represent it at a hearing: s.360(3).

15. The Tribunal has considered whether to make a further request for information from the applicant, but – in view of the lack of response by the due date, and the fact that the applicant was given additional time to provide submissions on the case despite failing to comply with the due date for a response to the s.359(2) letter) but has not done so – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers that it is reasonable to do so in the circumstances of the case, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

16. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s.140GBA must be met.

    Position must be genuine and full-time

18. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

19. As noted above, the delegate was not satisfied that this position was genuine, as she did not accept that an organisation of the size and nature of the applicant genuinely required a senior position such as Chief Executive or Managing Director.

20. The Tribunal has reviewed the material provided to the Department, which indicates that the applicant trades as Affordable Driver Training in Sandy Bay, Tasmania (postcode 7005) and is a driving instructor who also held a licence to operate as a passenger hire vehicle. Photographs were provided of several vehicles, including 2 taxis and a dual control vehicle used for driving instruction. However, it was not clear how many vehicles were owned by the applicant (as opposed to subcontractors). In the nomination application form, it is stated that there is only one employee, the nominee, but a number of subcontractors as needed, and in an advertisement for the nominated position placed on Gumtree by the applicant on 30 April 2018, it is stated that the applicant’s business involves driving instruction, taxi/transport service and car hire service, and that the applicant hopes to expand into India.

21. However, no evidence has been provided to the Tribunal about the current scope of the applicant’s business activities, apart from a brief email from the sole director (and nominee) Mr Gunasekaran on 16 June 2021, in which he refers to difficulties arising from the COVID19 pandemic affecting his ability to provide information about his business. He did not expand on this.

22. Given the lack of current information, it is difficult for the Tribunal to assess whether the position associated with the nominated occupation is genuine. Nevertheless, the Tribunal has done so.

23. The most recent Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary (as at December 2019) provides the following:

    …

    UNIT GROUP 1111 CHIEF EXECUTIVES AND MANAGING DIRECTORS

    CHIEF EXECUTIVES AND MANAGING DIRECTORS determine, formulate and review the general policy programs and the overall direction of organisations within the framework established by boards of directors and similar governing bodies.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    odetermining objectives, strategies, policies and programs for organisations

    oproviding overall direction and management to organisations

    oauthorising material, human and financial resources to implement organisational policies and programs

    omonitoring and evaluating performance of organisations against organisational objectives and strategies

    oconsulting with senior subordinate staff and reviewing recommendations and reports

    opreparing, or arranging for the preparation of, reports, budgets and forecasts and presenting them to governing bodies

    orepresenting the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility

    oselecting, or approving the selection of senior staff

    oensuring the organisation complies with company laws and other relevant legislation

    
    Occupation:

    111111 Chief Executive or Managing Director

    
    111111 CHIEF EXECUTIVE OR MANAGING DIRECTOR

    Alternative Title:

    Chief Executive Officer

    
    Determines, formulates and reviews the general policy program and the overall direction of an organisation within the framework established by a board of directors or similar governing body.

    Skill Level: 1

    Specialisations:

    Director-General
    Executive Director
    Secretary (Government Department) (Aus)

    …

24. No position description for the nominated position was provided to the Department or Tribunal, but the advertisement for the nomination placed on the Gumtree website by the applicant in April 2018 listed the following requirements:

    The role outline will have you responsible for

    • Achieving or exceeding monthly and annual budgets for the

    areas under your control Including sales, expenses, debtors and

    inventory

    • Develop an Australian operation to ensure that long-term profit

    plans will be achieved

    • Actively pursue the extension of existing markets and the

    development of new markets

    • Train and further develop personnel ensuring that this continued

    development will satisfy the needs of a growth company

    • Ensure awareness of market developments and the activities of

    opposition companies to ensure that accurate market Intelligence

    is collated.

    • Maintain communication and cooperation with other business

    units within the Company

    • Contribute to the continued growth and development of the

    company as a member of the Management Team /

    This role is actively being recruited and with a detail planned

    recruitment agenda, booked interview dates and appointment

    schedule coupled with an induction and potential handover with

    the Incumbent agreed.

    …

25. The Tribunal has carefully considered all of the evidence before it but, for the following reasons, it is not satisfied that the position required by the business is in the nominated occupation of Managing Director or Chief Executive as described in ANZSCO, as the applicant has claimed.

26. The Tribunal has considered what evidence there is about the nature of the business’ operations and accepts that it is a small business which operates from a residential unit (the nomination application lists the business address and the nominee’s residential address both as the same residential unit in Sandy Bay, a suburb of Hobart). The Tribunal accepts the business involves (or involved) driving instruction provided by the nominee and taxi services, which appear to have been provided by the nominee and/or up to 12 subcontractors. It accepts the business employs the nominee, Mr Gunasekaran, the owner/sole director of the business, in a role that requires some management activities, because it needs a person look after the paperwork for the business; take bookings and decide how to run the business on a day to day basis. It accepts the position communicates (or communicated) with subcontractors to provide a taxi service, although it is unclear to what extent this is still operating. It also accepts the position would deal with the applicant’s accountant, pay the wages and roster the subcontractors, and would do the bookkeeping and banking. The Tribunal accepts that the position would also be responsible for advertising its services to attract new customers. However, it also appears (from the advertising and the Facebook reviews provided about Affordable Driver Training by the applicant with the nomination application) that the nominee’s role is largely to provide driving training to learner drivers. In its advertising, this is stated to be on a daily basis, 9am to 5pm.

27. The Tribunal therefore considers the business is a small size enterprise, and given the size and nature of the business’ operations, it considers the position be that of a manager/operator of a driving school and small taxi service, which is not a position in the occupation of Managing Director or its Unit group. The Tribunal considers that the position of Managing Director/Chief Executive Officer is a skill 1 senior executive role that is normally found in much larger, more complex organisations with multiple business units, a board of directors or a similar governing body (as specifically stated in the ANZSCO occupational description set out above).   

28. The Tribunal has had regard to the position description provided in advertisement lodged by the applicant in 2018 on the Gumtree website.  While the duties set out in that advertisement are generally consistent with the wording of the tasks described in the ANZSCO for the occupation Managing Director, the Tribunal gives more weight to the other, contemporaneous evidence provided by the applicant regarding the duties of the position, being the fact that the applicant employs only 1 employee (the nominee, who also performs the bulk, if not all of, the driving school instruction), uses subcontractors and operates out of a residential unit.  This indication of the business’ needs and the duties undertaken in the position is significantly different to the advertisement which appears to embellish the role of the position. For example, it claims that the successful candidate will liaise with other Business Units. The Tribunal notes that the organisational chart provided to the Tribunal indicates that the business does not have any Business Units, as it is essentially a 1 person operation, and as such, does not have multiple business units, a board of directors or a similar governing body (as specifically referred to in the ANZSCO occupational description for a Managing Director or Chief Executive set out above).   

29. The Tribunal accepts that the applicant’s business has a need for some basic management duties to be undertaken. It is not satisfied, however, that it has a need for higher level, more complex duties of a Managing Director or Chief Executive to be undertaken. Having regard to the available evidence, it does not accept a business of the size and nature of the applicant’s needs a person to determine, formulate and review the general policy program and the overall direction of the business within the framework established by a board of directors or similar governing body. Having considered the scant evidence about the claims in the 2018 advertisement and in the nomination form itself, the Tribunal is not satisfied there are strategies, policies and programs, apart from a desire to increase clients and therefore, turnover. The Tribunal therefore considers that the written material provided regarding the size and nature of the business and the duties for the position has been embellished and is not reflective of the business’ actual needs.

30. While the Tribunal accepts that owners/directors of small businesses may perform some of the tasks set out in ANZSCO for the occupation Managing Director, the Tribunal considers that in this business, the owner/director spends the bulk of his working time performing other duties that are not consistent with, or at the level of, Managing Director as described in ANZSCO, and would therefore does not meet the requirements for the purposes of a subclass 457 nomination. The Tribunal is not satisfied in this case that the position will involve undertaking the bulk of tasks at the level of complexity, and at the skill described in ANZSCO, for the occupation Managing Director or Chief Executive. Nor does it accept that being a sole director of an incorporated entity in Australia is – in and of itself – equivalent to a Managing Director or Chief Executive role in any substantive sense.

1. Given the above, the Tribunal is not satisfied that the position can be accurately described as Managing Director or Chief Executive. For these reasons, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.

2. For these reasons the requirements of r.2.72(10)(f) are not met. As all subparagraphs of r.2.72(10) must be met for the nomination to be approved, it is unnecessary for the Tribunal to go on to consider the remaining subparagraphs.

3. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

   DECISION

4. The Tribunal affirms the decision not to approve the nomination.

   Alison Mercer
   Member

   
   

   ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

   (1)This regulation applies in relation to a person who:

   (a)is any of the following:

   (i)       a standard business sponsor;

   (ii)      a person who has applied to be a standard business sponsor;

   (iii)     …

   (iv)    …

   (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

   (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

   (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

   (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

   (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

   Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

   (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

   (4)The Minister is satisfied that either:

   (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

   (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

   (5)The Minister is satisfied that:

   (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

   (b)…

   (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

   (6)If the nominee holds:

   (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

   (b)a Subclass 482 (Temporary Skill Shortage) visa;

   the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

   (7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

   (8)The Minister is satisfied that:

   (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

   (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

   (ii)      …; and

   (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

   (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

   (a)whether the occupation is:

   (i)       a short term skilled occupation; or

   (ii)      a medium and long term strategic skills occupation; and

   (b)either:

   (i)       the 6-digit ANZSCO code for the occupation; or

   (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

   (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

   (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

   (i)       the person who nominated the occupation;

   (ii)      the nominee;

   (iii)     the occupation;

   (iv)    the position in which the nominee is to work;

   (v)     the circumstances in which the occupation is undertaken;

   (vi)    the circumstances in which the nominee is to be employed in the position.

   (10)The Minister is satisfied that the position associated with the occupation is:

   (a)genuine; and

   (b)a full-time position.

   (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

   (11)If:

   (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

   (b)the person is not an overseas business sponsor; and

   (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

   the Minister is satisfied that:

   (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

   (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

   (12)If:

   (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

   (b)the person is an overseas business sponsor; and

   (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

   the Minister is satisfied that:

   (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

   (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

   (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) … ,

   (14)If:

   (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

   (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

   (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

   the person has provided evidence to the Minister that the nominee satisfies:

   (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

   (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

   (15)Subject to subregulation (16), if:

   (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

   (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

   the Minister is satisfied that:

   (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

   (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

   (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

   (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

   (g)either:

   (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

   (ii)      it is reasonable to disregard any such information.

   (16)However:

   (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

   (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

   (ii)      it is reasonable in the circumstances to do so; and

   (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

   (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

   (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

   (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

   (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

   (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

   (a)either:

   (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

   (ii)      it is reasonable to disregard any such information; and

   (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

   (19)…