SHINE MOTOR CORPORATION PTY LTD (Migration) - [2023] AATA 2853

SHINE MOTOR CORPORATION PTY LTD (Migration) [2023] AATA 2853 (28 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SHINE MOTOR CORPORATION PTY LTD
REPRESENTATIVE:  Mr Eddy Erny (MARN: 0323211)
CASE NUMBER:  1931279
HOME AFFAIRS REFERENCE(S):          BCC2019/4896646
MEMBER:Alan McMurran
DATE:28 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 28 July 2023 at 4:48pm

CATCHWORDS
MIGRATION–nomination – Medium-term stream – Corporate General Manager – no adverse information– applicant is the standard business sponsor – position associated with the nominated occupation is genuine and full time – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 4 November 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2019 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, SHINE MOTOR CORPORATION PTY LTD, applied for approval on 30 September 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 for up to 4 years in the Medium-term stream. The nominated occupation is Corporate General Manager (ANZSCO 111211), and the nominee is Mr Mohd Taqi DAD Ali. The nominee has made a related application for the Subclass 482 TSS visa, which is also under review in the Tribunal.[1]
[1] Tribunal case 1933826
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl 2.72(10)(a) of the Regulations because the position was not what it purported to be and therefore the nominated occupation was not ‘genuine’.
On 27 July 2023, the applicant appeared in a combined hearing with the Tribunal’s review of the nominee’s visa decision. The hearing was scheduled for two hours. A director of the applicant, the nominee, and the director’s two sons were present to give evidence and present arguments.
On the morning of the hearing, when contacted at the scheduled time, the applicant and witnesses asked the Tribunal to conduct the hearing by telephone as they had been unable to connect using the available video link. They did not seek an adjournment and were ready to proceed. An interpreter from the English language to the Persian (Farsi) language was available to interpret for the witnesses where called upon.
The Tribunal received oral evidence from the nominee, Mr Mohd Taqi DAD Ali, who is also a director of the applicant (referred to herein as “Mr Ali”), and from another director of the applicant, Mr Jawaid Wali (referred to as “Mr Wali”). Mr Ali’s son, Leyaqat Hussein Haji Mohd Taqi (“Leyaqat”), who works part-time as an assistant manager for the applicant was present and gave short evidence. Mr Abdul Mobin Mohammad Taqi (“Abdul”), another son of Mr Ali, was also present from Brisbane by telephone. He was not required to give evidence. The secondary applicants for the visas as members of the family unit of Mr Ali were not present for the hearing.
The hearing was conducted by telephone and in accordance with the Tribunal’s Practice Direction, determined by the Tribunal to be the means of achieving its statutory objective to conduct a hearing which is fair, just, economical, informal, and quick[2]. No objection was taken to the form of the hearing and both the applicant and the visa nominee had made written submissions and provided a large bundle of documents beforehand.
[2] Administrative Appeals Tribunal Act 1975, s.2A
There were no concerns raised about the interpreter and the language used or about the hearing itself. The witnesses all gave their evidence in English, and the interpreter was called upon for some of the questions and answers as the witness chose. The Tribunal did not discern any issues arising from the process.
The applicant and the nominee were both represented in relation to the review by the same migration agent who did not appear for the hearing.
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 decision in relation to the visa application is the subject of a separate decision in Tribunal case number 1933826.
The particular issue which troubled the delegate was cl 2.72(10)(a) of the Regulations. The intention of this provision is to ensure that positions so nominated are in skilled occupations that are genuinely needed and so described by the nominating employer.[3]
[3] Explanatory Statement to SLI 2013, No 146, Attachment B, p.34.
The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets all the requirements in reg 2.72: s 140GB(2). If any one requirement is not met, then the reviewer does not need to consider any remaining requirements.
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 Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, including recent submissions from the representative, and oral evidence from the hearing as referred to below.
This includes material which was not before the Department. The Tribunal has also had regard to the Act and the Regulations, relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines. A large amount of information has been submitted by the applicant including in response to Tribunal requests and invitations to respond. On completion of the hearing, no further information was requested or sought to be provided.
The Tribunal has placed significant weight on the oral evidence obtained from the hearing and which was not available to the Department delegate.
Background
The applicant is a small to medium business engaged in the acquisition and sale of used motor vehicle parts and in metal recycling. The Shine Group itself is part of a worldwide network of motor vehicle spare parts providers who source and sell parts for wholesale distribution. The applicant’s clients are primarily located overseas and the applicant operates the business under a current Commonwealth export licence. The applicant has a current turnover on its latest (2022) FYE ATO statement in excess of AUD26,000,000.00.
The applicant employs currently 10 staff including the nominee. The business operates from premises at Ingleburn in outer Western Sydney. The nominator relies for this application upon recent submissions concerning the position associated with the nominated occupation as to whether it is genuine and full-time, and the oral evidence from the directors at the hearing, and the submissions concerning the work performed by the nominee and the tasks involved.
The nominee, Mr Ali, was appointed as a director of the applicant (also referred to as “the company”) from inception in January 2014. Mr Ali is a citizen of the Islamic Emirate of Afghanistan and is currently on a Bridging visa, as is his family, while they await the visa outcome. The other director, Mr Wali, is an Australian citizen.
Mr Wali gave evidence that he is not engaged on a daily basis in the company’s business, which is run almost entirely by Mr Ali. Mr Ali gave evidence referred to below about his role and how the business operates. Mr Ali’s two sons who were present for the hearing gave short evidence. Leyaqat Taqi said he confirmed what his father had said and could offer nothing further. He said he is on a student visa which occupies most of his time but works some time in the business as an assistant manager to help his father. Abdul Taqi chose not to offer any evidence himself, saying he is currently in Brisbane working on a skilled occupation visa. He is not involved in the company.
Evidence concerning all the criteria to be satisfied under r 2.72 is set out below under the various criteria headings. The Tribunal has dealt with each criterion separately as follows.
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.
On the available information, the Tribunal is satisfied the applicant is nominating an occupation and the corresponding 6 digit code under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Medium-term stream[4]. The nominee is nominated to work in the nominated occupation.
[4] LIN19/048 commenced 11 March 2019; for nominated occupations on 11 March 2019, this includes Corporate General Manager (ANZSCO 111211), and which is subject to an inapplicability caveat.
The Tribunal is satisfied from the Departmental information that the application was made on the approved form, and the fee paid together with the nomination training contribution charge applicable and collected from the applicant at the time of lodgement, which is in accordance with the current requirements for payment of the fee upon lodgement and as assessed by the Department accordingly.
The nomination includes the proposed period of stay for a visa granted on the basis of the nomination, and the applicant’s annual turnover as calculated for the financial years 2021 and 2022 and as submitted. The most recent BAS for the period ending June 2022 shows reported sales at $1,049,720 for the last quarter of the financial year 2022. The location for the performance of the work is said to be in Sydney.
The Tribunal finds that the application identifies the applicant as a standard business sponsor for the 5-year period from 18 February 2021 to 18 February 2026 and includes the following certifications:
a.    the relevant 6-digit occupation code, Corporate General Manager (ANZSCO 111211), with the name of the occupation, identifying the nominee in the nomination.
b.    the principal location in Ingleburn, Sydney, where the occupation is carried out.
c.     the applicant’s turnover, estimated at the time of application (2019) at more than $4million but less than $10million.
d.    the applicant has not engaged in conduct that contravenes s 245AR (1) of the Act relating to paying for visa sponsorship or a sponsorship-related event.
e.    the nominee’s employment contract dated 24 September 2019, complies with Commonwealth, State, or Territory employment laws.
f.   the nominator’s certification states the tasks of the nominated occupation include a significant majority of the tasks specified for the occupation of , Corporate General Manager (ANZSCO 111211), and the qualifications and experience of the nominee are commensurate with those specified for the occupation[5] in accordance with the relevant instrument. The occupation is exempt from any additional requirements in accordance with the relevant instrument.[6]
[5] IMMI 19/048
[6] IMMI 18/035
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.
At the time of decision, the Tribunal finds there is no adverse information known to Immigration or the Tribunal, about the applicant or a person associated with the applicant.
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.
Department records have confirmed that the applicant is a standard business sponsor for the period from 18 February 2021 to 18 February 2026.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO of the Act, and which has not been paid in full.
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).
The nominee is not the holder of a Subclass 457 or Subclass 482 visa and there are no current family members of the nominee who hold a Subclass 457 or Subclass 482 visa as a family member of the nominee.
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The applicant has specified the nominated occupation of Corporate General Manager (ANZSCO 111211) which corresponds to an occupation in the relevant compilation instrument LIN 19/048.
The occupation is subject to an inapplicability condition relating to the applicant’s nominated annual earnings, which must not be less than AUD180,001.00. The available evidence which the Tribunal accepts is that the nominee’s annual earnings total in excess of the required minimum. The submitted employment agreement shows agreed salary at $180,500.00.
The meaning of and intent for the application of an inapplicability condition such as here over remuneration conditions was discussed by DP Redfern in another Tribunal decision and which this Tribunal accepts as the correct and preferable approach to the issue.[7]
[7] PROJECT 42 PTY LTD (Migration) [2022] AATA 2200 (8 July 2022) pars 57-62
Mr Ali was asked questions about his income at the hearing. He explained he draws his own salary and his remuneration expenses which include his director drawings and cover his motor vehicle, mortgage and other personal expenses which are in addition to his salary. He confirmed his salary as agreed in the employment contract produced and in addition to reimbursement for any personal expenditure.
The Tribunal finds on the evidence and available information that the inapplicability condition is not met because the salary threshold is exceeded, and so the condition is not enlivened to apply to the position in this case, and the position is available for the nomination in accordance with the relevant compilation instrument LIN 19/048.
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. There was no issue before the Tribunal or any evidence to the effect that the position is not full-time.
Regulation 2.72(10)(a) is a determination of not only whether the position in question is genuine, in the sense that the position actually exists, but also whether that position really is what it purports to be. The Courts have confirmed that the determination necessarily requires a qualitative analysis of the position, and a comparison of that with the occupation which has been nominated by the proposed sponsor.[8]
[8] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34] (“Cargo”)
The analysis requires that the Tribunal is satisfied on the available information and from the evidence that the nominated position, in this instance for a Corporate General Manager,[9] demonstrates the tasks to be performed as aligned against the ANZSCO guide, and that at least a majority of those guideline tasks are demonstrated. A contextual background which shows the size and operational basis for the business and how the nominee operates and the nominee’s performance in that role are all considered.
[9] ANZSCO 111211
The Tribunal was concerned that the position associated with the nominated occupation in this case aligns with the tasks for the occupation as identified in ANZSCO, and that the position is in fact what it purports to be. The Tribunal has had regard to the evidence at the hearing and also considered the current employment agreement signed by the parties. The Tribunal has paid particular attention to the evidence of Mr Ali as to the role he performs and the business operations of the company, and his employment background and gives considerable weight to that evidence.
Mr Ali gave evidence that he attends the site at Ingleburn on a daily basis and starts each day with a meeting of those employees present. Mr Wali for his part confirmed that he has “other business interests” and leaves the daily business operations entirely to the nominee, noting that he does not attend the premises himself except infrequently.
ANZSCO provides the tasks for the occupation of a Corporate General Manager to include:
- planning policy, and setting standards and objectives for organisations
- providing day-to-day direction and management of organisations, and directing and endorsing policy to fulfil objectives, achieve specific goals, and maximise profit and efficiency
- assessing changing situations and responding accordingly by issuing commands and directives to subordinate staff
- consulting with immediate subordinates and departmental heads on matters such as methods of operation, equipment requirements, finance, sales and human resources
- authorising the funding of major policy implementation programs
- representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility
- preparing, or arranging for the preparation of, reports, budgets and forecasts, and presenting them to governing bodies
- selecting and managing the performance of senior staff
- may undertake responsibility for some or all of accounting, sales, marketing, human resources and other specialist operations
Occupations:
- 111211 Corporate General Manager
- 111212 Defence Force Senior Officer
Qualifications are at ANZSCO Skill Level 1, being the highest category and reflecting the seniority of such positions. It recommends a skill level commensurate with a Bachelor degree or higher, or at least 5 years relevant experience.
Corporate General Managers plan, organise, direct, control and review the day-to-day operations and major functions of a commercial, industrial, governmental or other organisation through departmental managers and subordinate executives.

The delegate was concerned in this instance that there was insufficient evidence to demonstrate that the role really is what it is supposed to be and that the size of the business and its operational context dealing in scrap metal did not align with the ANZSCO tasks and definition.
The Tribunal spent most of the hearing time focused on the applicant’s job role and work he does in that role. The company has a small workforce of 10, as outlined in the company’s submitted organisation chart. It shows Mr Wali as the Managing Director and the nominee Mr Ali (referred to as ‘Mohd Taqi’ in the chart) as the General Manager. The Tribunal learnt from both directors that Mr Wali as the Managing Director, plays little or no part in the running of the business. Mr Ali explained that both he and Mr Wali had known each other beforehand, firstly from Afghanistan and after when the nominee was working in other related roles overseas, in Pakistan then the United Arab Emirates and finally in Japan.
Mr Ali was asked to explain his employment background, his business experience and the operation of the company in Australia, both on a daily basis and in the broader context of its sales and marketing activities and engagement with clients and its overall business growth and performance.
The Tribunal found the oral evidence presented was impressive. Mr Ali is 62years old and started his working life in a family business in Afghanistan with his father and brothers. The business involved locating and retrieving spare parts for popular motor vehicle brands such as Pajeros and other imported four-wheel drive vehicles. He had obtained a Master Degree in Mining Engineering from Polytechnic University in Kabul in 1989. A copy of the qualification was submitted. He said he completed his compulsory military service between 1989 and 1992 and then moved to Peshawar in Pakistan where he worked for a company and obtained some management experience in a related business, still working with vehicle spare parts, and became a “branch manager”.
His spoke to his submitted resume and his next experience in the UAE from 1995 until 2012, where he worked for the Shine Motor Used Auto Spare Parts Trading Co. LLC. He explained that the business operated in a competitive environment and he used the opportunity to locate and pursue export potential and many contacts from numerous countries where the business operated. These were contacts that he has now developed and is continuing to promote for his Australian business operating in the same field locating and exporting popular vehicle parts.
He explained that he “ran the business” in the UAE before moving to Japan. He said the spare parts business involved working with popular Japanese motor vehicle brands, which is how he went to work in Japan himself in 2012, before coming to Australia in 2014. He said his plan in coming to Australia was discussed with Mr Wali first as to starting the Shine business in Australia, and how it would be funded by the two of them. He said he used his contacts from both the UAE and Japan to establish the applicant as an export business. It was always his intention in coming to Australia to run the business himself and have it sponsor him as an employee, notwithstanding his position as an owner/operator.[10]
[10] See also discussion by DP Redfern in PROJECT 42 PTY LTD (Migration) [2022] AATA 2200 (8 July 2022) at par 76
He explained that in Japan, Golden Motor Co Ltd had employed him as an export manager, where that company was involved in exporting quality used motor vehicles and construction machinery as well as spare parts. He said that Golden Motor dealt with exports to over 40 countries and involved the movement of hundreds of shipping containers every year, and which it was his job to manage. He said he had first forged a business connection with Golden Motor when he was in Dubai as a source for acquiring parts to service his customers.
He explained that the company in Australia exports “99.9%” of its products, which are sourced both locally and from overseas. The main products, pre-pandemic, were vehicle spare parts, sourced from damaged and second hand vehicles. He said the company fills 4 or 5 containers each week for export. The company customers are located in “40 or 50” countries and it is his job to source and develop those clients, manage them and their orders from Australia.
He said the role involves him regularly contacting and sourcing overseas clients and sometimes suppliers, as he distributes mainly to wholesalers and does not operate in the retail sector. He said the local business operations are conducted at the Ingleburn premises where the shipping containers are located and filled with orders for export. His staff have different roles in the process from bookkeeping and invoice management to working in the yard driving forklifts and sorting and managing the orders. The company uses machinery to extract and salvage parts, a stripper machine for removing cabling and a baler machine for compressing aluminium, copper and stainless steel.
He said that during the pandemic, “things slowed down” and he saw an opportunity to develop the business. He explained that he wanted to develop a metal recycling facility, in addition to the location and preparation of spare parts for exporting to overseas customers. He said the recycled metal product is developed from scrap metal and also sold and distributed to overseas customers, including China which takes extracted recycled copper. He said the growth of the recycling business has been quick to take off and turnover has grown from around $26 million in 2019 to $28 million in 2023. Prior to that, the business predominantly earned its income from the spare parts trade which is now “about equal” to revenue from the recycled trade.
The nominee was asked about his daily role, where he explained that he takes responsibility for supervising all staff and manages the office , as well as dealing with customers and planning development, new business, and dealing with all the associated regulatory export requirements for which the business is licenced. He said he oversees the staff and is the principal manager. He directs recruitment and manages human resources, supervises advertising for marketing purposes and receives daily management reports on sales and financial performance. He meets also with Mr Wali and reports to him as to financial performance, growth and business development. He said the cost of sales is high, as reported in the 2022 financial statements and leaves only a relatively small margin (around 9% on the information produced) as compared to the large volume of sales for the same period. The produced financial statement for FYE 2022 shows gross trading income of $28,268,830.48, an increase of more than $10,000,000.00 on the previous year. Cost of sales for that period is shown as $23,848,427.01, leaving a gross profit of $2,420,403.47. Mr Ali explained that he keeps a close eye each day on the financial information from his accounts manager and liaises with the external accountants engaged.
The above is a summary of the information revealed at the hearing and which the witness provided without guile or equivocation and answered all questions directly. The Tribunal formed the view that the nominee was a credible witness, has considerable experience and an extensive and successful background over many years working in the metal industry, specialising in motor vehicle parts and now metal recycling, all of which is primarily for the export market.
Analysis – has this requirement been met that demonstrates the position associated with the nominated occupation is genuine?
It is evident to the Tribunal from the nominee’s evidence about the position that he has broad-based experience for the nominated occupation and is performing a majority of the tasks outlined in ANZSCO. The role is a complex activity and carries with it a large amount of responsibility for the success of the applicant’s business. The business is a small operation in terms of staff numbers, but that is not the only measure available to demonstrate the alignment of the position against the nominated occupation. The financial exposure in the environment is significant taking into account the relatively small margin involved for the net returns. The nominee is attempting to address that risk by developing and growing the business in the related field of metal recycling, which at first blush, seems to have generated significant results over a short time frame. The success or otherwise of that development will largely depend upon the experience and involvement of the nominee in planning and setting the business objectives, acquired from his gained overseas experience and support from foreign markets pursued by him personally over many years.
The Tribunal has endeavoured to account for the tasks associated with the role as outlined by the ANZSCO guide. The Tribunal has not examined each task separately to form a conclusion on each task as described, but rather prefers to take a more contextual view of performance aligned with a host of factors including business goals and objectives as demonstrated and described and the financial goals achieved over the past decade in operations and the growth and development in that period. The analysis on review is not an exercise in simply describing each task piecemeal but considering overall the established business relationships created by the nominee in his role, the involvement of support staff in daily operations, the role played as a business principal and dealing with all the duties and responsibilities that entails and reflected also in the remuneration and reward for effort for the nominee’s work.[11]
[11] See description and analysis in Nutritional Choice Australia Pty Ltd v Minister for Home Affairs & Anor [2019] FCCA 1754 per Judge Kelly, at [92-93]
The Tribunal finds support for such an approach from the Full Federal court which has found that “Having regard to the structure of the ANZSCO Code, as outlined above, the Tribunal ought to have regard to all potentially relevant tasks which were applicable to the occupation … and not simply confine itself to the relatively narrow statement of tasks in the relevant unit group.” [12]
[12] See Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 at [52]
The analysis which might support ‘genuineness’ does not involve a review of whether a commercial decision has been properly taken to employ the applicant. But rather it is intended and necessary to test whether the applicant is ultimately doing a majority of those things required for the job role and which do align with tasks as directed by ANZSCO.[13] This is particularly so where an application involves what is referred to as ‘self-sponsorship’, and a nominator creating a position for a family member or associate who may not necessarily have the required qualifications and experience. The Tribunal is satisfied that this is not the case in this instance, on the available information and evidence as considered from the hearing. [14]The application is not designed to secure a migration outcome favourable to the nominee, but rather to support a developing and flourishing business utilising the unique experience of the applicant nominee.
[13] Department policy considerations - PAM 3 – TSS nominations at 4.5.7
[14] See discussion and reference above at par 63
In consideration of all of the above, the Tribunal is satisfied that the applicant has demonstrated that the position associated with the occupation is both genuine in the Cargo sense, full-time and 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 IMMI 18/035.
In this instance, the occupation of Corporate General Manager is a specified occupation in IMMI 18/035, made under reg 2.72(13).
Accordingly, the provisions in regulations 2.72(11) and (12) do not apply.
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 IMMI18/033 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 IMMI18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: 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 ($250,000.00), the requirements of reg 2.72(15) must be met.
The annual earnings for the occupation nominated must be determined in accordance with the relevant instrument IMMI 18/033. This provides at Part 3 the method for determining the annual market salary rate (“AMSR”) where an Australian worker is performing equivalent work. The applicant must have regard to a relevant fair work instrument, State industrial instrument or transitional instrument applicable to an Australian worker employed in the same workplace, at the same location and performing equivalent work. In this instance, there is no applicable industry Award for a senior management role of Corporate General Manager.
Related advertisements for such a position demonstrate that the AMSR for the occupation is in a range from AUD119,063.00 to AUD200,000.00.[15] The applicant has provided evidence available on the Department file of similar advertised positions in Australia ranging from $170,000.00 upwards to $220,000.00.
[15] Payscale Australia - General Manager Salary in Australia in 2023 | PayScale
As the applicant’s annual salary of $180,500.00 for the nominated occupation exceeds the AMSR by reference to advertised similar positions, the Tribunal finds it is satisfied for these reasons that the requirements of reg 2.72(15)(c) are met.
The Tribunal further finds that the rate for the occupation is not less than the TSMIT threshold of $53,900 specified in IMMI 18/033.
For these reasons the requirements of reg 2.72(15)(d) are met.
For the reasons given above and relying upon the provided industry and occupation evidence for the role of Corporate General Manager, the Tribunal is satisfied that the requirements in the legislative instrument,18/033, as to the method of determination of the annual market salary rate have been followed.
For these reasons the requirements of reg 2.72(15)(e) are met.
The Tribunal has found that the nominee’s earnings for the position in relation to the nominated occupation are not less than the TSMIT minimum of $53,900 as specified.
For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal to indicate that the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. The evidence submitted shows the nominee is paid an average salary at the time of decision, being the rate commensurate with what an Australian citizen or 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. Information available on the Internet shows that the average base salary for a Corporate General Manager as at the time of application in Sydney can range from approximately $82,100.00 to $261,000.00 per annum, not including superannuation or other entitlements.[16]
[16]
The Tribunal concludes for these reasons that 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.
The Tribunal finds it is satisfied on the available information that there is no information known to Immigration that indicates that the employment conditions that 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.
For these reasons the requirements of reg 2.72(18)(a) are met.
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 available information submitted from the applicant’s advertisements for the position, reveals the applicant adopts entirely orthodox and appropriate language used and non-discriminatory advertising for recruitment of the nominee, where the only requirements sought reflect qualifications, experience, and expertise.
The phrase “discriminatory recruitment practices” is not a defined term. The Tribunal finds there is no evidence before it that the applicant has engaged in any discriminatory recruitment practices based on the available information.
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 LIN18/036. 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 LIN18/036.
The instrument provides that the advertising must be in the English language, in at least 2 advertisements, on a recruitment website with national reach in Australia, or similarly in print media with national reach, or on radio. Where the sponsor is accredited, the advertising may appear on the approved sponsor’s website. The advertising must continue for a period of at least four weeks from first publication and have occurred within four months of the lodgement of the application. The advertisements must include the title description of the position, skills and experience required, name of the sponsor (or the recruitment agency), and the salary for the position where the proposed earnings are lower than $96,400.
Having considered the available evidence from the applicant’s advertisements for the position, and the written submissions, the Tribunal accepts that the advertising criteria have been met. The evidence discloses to the Tribunal’s satisfaction that there was no suitable qualified and experienced Australian citizen, permanent resident, or eligible temporary visa holder available to fill the nominated position.
Further, there is no evidence that any Australians or permanent residents were made redundant/retrenched, prior to the advertising being undertaken (or at all). The evidence is that the nominee meets the requirements for the nominated position, and that there was no other appropriate candidate who responded to the advertising, who has the nominee’s unique skillset for the position.
For these reasons, the labour market testing requirements in s140GBA 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 applicant in this instance is liable to pay the charge, the application having been made on 30 September 2019.
The Tribunal is satisfied on the available information that the Department has collected the charge on lodgement of the application, and which has been receipted for the applicant, and which amount includes the SAF levy as calculated for the application in the Medium-term stream.
For these reasons the requirements of s 140GB(2)(aa) are met.
Conclusion
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.
Alan McMurran

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)…