Shinka Hair & Make Up Pty Ltd (Migration)

Shinka Hair & Make Up Pty Ltd (Migration) [2022] AATA 580 (17 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shinka Hair & Make Up Pty Ltd
REPRESENTATIVE:  Mr Hideaki Takahata (MARN: 0325064)
CASE NUMBER:  1837471
HOME AFFAIRS REFERENCE(S):          BCC2018/4945248
MEMBER:Karen McNamara
DATE:17 March 2022
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 17 March 2022 at 11:23am
CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – hairdresser – genuine position – comparison of nominated position and ANZSCO description – nature, size and activities of business – nominee’s qualifications and experience – length of employment already – part-time work after birth of child, and intention to work full-time if visa granted – staff shortages – international trade obligations mean position is exempt from labour market testing – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 273
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 6 December 2018 to refuse to approve the application by Shinka Hair & Make Up Pty Ltd (the applicant) for 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 8 November 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate refused the nomination on the basis that the applicant did not satisfy r.2.72(10)(a) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant applied to the Tribunal on 20 December 2018, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 15 March 2022, the applicant represented by Mr Fujihiro Masudome appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Mamie Shimoda (the nominee) in the related matter for the subclass 482 visa (AAT Case file 1901300). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages. During the hearing the Tribunal sought feedback from Mr Fujihiro Masudome and Mrs Mamie Shimoda that they were satisfied with the interpretation and advised them to immediately bring to the Tribunal’s attention any concerns regarding the interpretation. Mr Fujihiro Masudome and Mrs Mamie Shimoda advised that they were satisfied with the interpretation and did not raise concerns with the Tribunal during the hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative did not attend 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 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.
Background
The applicant operates a hairdressing salon located in George Street Sydney CBD. The salon is part of a group of four salons operating under separate entities within the Shinka Group. ASIC records show the business was registered on 12 December 2007.
On 8 November 2018, the applicant lodged an application under the Temporary skill shortage Subclass 482 stream for the occupation of Hairdressers (ANZSCO 391111). The nominated guaranteed annual earnings are $54,000 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
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.
The Tribunal has had regard to the material in the Department’s file and is satisfied that:
·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1).
·the nomination was made using the approved form and fee, as per r.2.73(3),(4) and (5);
·the nomination was accompanied by the applicable training contribution charge, as per r.2.73(5A).
·the nomination was made in the Short-term stream as the nominated occupation of Hairdressers (ANZSCO 391111) is a Short-term specified skilled occupation in the relevant instrument, IMMI 18/048, as per r.2.73(6);
·the applicant identified the nominee, Mrs Mamie Shimoda (nee Wakaya), in the nomination, as per r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nominating business, as per r.2.73(9);
·the nomination includes disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act: r.2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.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.
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and notes that there is no evidence before the Tribunal to suggest that there is adverse information known to Immigration within the meaning provided in r.1.13A and r.1.13B.
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 indicate that the applicant was most recently approved as a standard business sponsor on 18 December 2021 to 18 December 2026, therefore the agreement is valid. The Tribunal is therefore satisfied that the applicant 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.
There is no evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
For these reasons, the Tribunal finds that the requirements of r.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.
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 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Hairdressers (ANZSCO 391111) is specified in the Short-term skilled occupation list in IMMI 18/048.
The Tribunal is satisfied that the nominated occupation is not precluded by an inapplicability condition (or ‘caveat’) specified in IMMI 18/048.
For these reasons the requirements of r.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.
The delegate refused the application on the basis the applicant’s nomination did not satisfy the requirements of r.2.72(10)(a) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The Tribunal has had the benefit of discussing with the applicant and nominee at the hearing, the business’s financial profile, organisational structure, operations and the precise tasks and responsibilities of the nominated position. The Tribunal therefore on the basis of this evidence, has formed a different view and accepts the evidence presented by the applicant in addressing the requirements of regulation 2.72(10)(a).
The Tribunal has considered the ANZSCO occupational dictionary with regard to the occupation of Hairdressers (ANZSCO 391111). ANZSCO states in relation to the occupation of Hairdressers as follows:
UNIT GROUP 3911 HAIRDRESSERS
HAIRDRESSERS cut, style, colour, straighten and permanently wave hair, and treat hair and scalp conditions.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
Occupation:
391111 Hairdresser

391111 HAIRDRESSER

Cuts, styles, colours, straightens and permanently waves hair, and treats hair and scalp conditions.
Skill Level: 3
Specialisation:
Barber

The applicant provided to the Tribunal a position description indicating the tasks undertaken by the nominee, which relevantly states the nominee performs the following tasks;
- Cuts, Styles, Colours, Straightens and Permanently waves hair and treats hair and scalp conditions.
MAIN TASKS:
·Provide full salon services, including hair cutting, shampooing, blow drying, coloring and styling
·Maintain cleanliness of salon and sanitize instruments
·Keep on top of current hair cutting and styling trends
·Provide advice on hair care, beauty products and hair styles
·Help maintain adequate inventory of hair products and tools
·Ensure clients with scheduled appointments receive service in a timely manner
·Arrange appointment and collect payment for services provided
·Train Junior hairdressers
·Ensure compliance with OHS regulations and procedures
The Tribunal has afforded consideration to the oral evidence obtained at the hearing in conjunction with supporting documentation, including the nominee’s Contract of Employment dated 24 September 2018, Income Statements, and details of the nominee’s work history with the applicant.
Evidence before the Tribunal shows that the nominee commenced working for the applicant on a part time basis in February 2016. At the hearing the nominee told the Tribunal that she has worked approximately 5 ½ years in the position on a full-time basis but following the birth of her child in January 2022 has returned to work on a part time basis, however she intends to return to work on a fulltime basis if her visa is granted. The applicant confirmed that the position is full time, and that the nominee has been working on a part time since the birth of her child.
At the hearing the Tribunal discussed with the applicant the financial capacity of the business to support the nominated full-time salary of $54,000 per annum. The applicant told the Tribunal that since the easing of the Sydney lockdowns, business is gradually increasing with salon bookings now at 80 to 90% capacity. The shortage of staff is problematic as the salon does not have enough hairdressers to meet client demand hence why bookings remain at 80 to 90%.
The delegate in their decision dated 6 December 2018, raised concern as to the number of foreign workers employed by the applicant. The Tribunal invited the applicant to respond to the delegate’s concerns at the hearing. The applicant told the Tribunal that the business now employs an Australian citizen and two permanent residents. Because the salon specialises in Asian hair types, it has been difficult to find Australian trained hairdressers experienced with Asian hair hence why the applicant employed foreign nationals.
Given the evidence before it, the Tribunal is satisfied on balance that the position offered to the nominee is genuine and is what it purports to be. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's experience and qualifications. The Tribunal is satisfied on the evidence before it that there is a business need for the position which supports the genuine need for the position. The Tribunal has also had regard to the applicant’s tax returns, BAS returns, financial statements, and the nominee’s Income Statements provided to the Tribunal.
Accordingly, in consideration of the evidence before it, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and it finds that the requirements of reg 2.72(10)(a) are met.
The Tribunal accepts from the material provided, including the nominee’s Contract of Employment dated 24 September 2018, that the position is a full time one. Accordingly, it finds that r.2.72(10)(b) is met.
As the criteria in both rr.2.72(10)(a) and (b) are satisfied, accordingly the requirements in r.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 relevant instrument IMMI 18/035 (the Tribunal is satisfied that the nominated occupation in this case is not specified in the relevant written instrument). In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)). In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.
The applicant has provided to the Tribunal an employment contract dated 24 September 2018 and variation dated 11 November 2021, setting out the nominee’s terms and conditions of employment. The variation to the contract of employment dated 11 November 2021 provides a salary (exclusive of superannuation) of $57,000 per annum.
For these reasons the requirements of r.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 (currently $250,000). Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: r.2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT, currently $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: r.2.72(15)(d) and r.2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).

The Tribunal has sighted evidence provided by the applicant which support the nominee’s annual earnings. This evidence includes the nominee’s most recent employment contract (variation) dated 11 November 2021 and Income Statements.
The Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings are not equal to or greater than $250,000, therefore the applicant must satisfy r. 2.72(15).
The Tribunal has before it evidence which supports that the applicant has determined the annual market salary by way of reviewing advertisements and industry salary survey information. In the nomination application to the Department, the applicant indicated that there is no equivalent Australian worker doing the same work as the nominated person.
The applicant has provided advertisements for similar positions and industry salary survey information on Seek, Joboutlook, Payscale, Indeed, Adzuma, Salary Explorer, Talent.com and Glassdoor websites. The advertisements on Seek list the salary range for a Hairdresser position is between $50,000 and $60,000 per annum. Talent.com data notes the salary range for a Hairdresser is between $53,763 to $72,059 with the medium being $$55,250 per annum). Payscale shows the salary range is between $36,000 to $56,000 per annum. Salary Expert shows the average salary for a hairdresser is $54,006 and Glass door shows the average salary is $57,119 per annum.
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15)(c) are met.
The Tribunal is satisfied that annual market salary rate exceeds the current TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.
The Tribunal finds that the nominee’s annual earnings of $57,000 (as indicated in the nominee’s variation to employment contract dated 11 November 2021 will not be less than the market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as evidenced in the applicant’s contract of employment exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.
Accordingly, the requirements of r.2.72(15) 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 has had regard to the terms and conditions of the nominee’s employment as set out in the employment contract dated 24 September 2018 and variation dated 11 November 2021 and that the terms and conditions appear consistent with the Fair Work Act 2009 and National Employment Standards.
The Tribunal is therefore satisfied that r.2.72(18)(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices. Accordingly, the Tribunal finds that r.2.72(18)(b) is 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 the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing (LMT) means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the 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 s.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
The nominee is a citizen of Japan. The Tribunal confirms that item 5 (d) of LIN 21/075 identifies the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and 5(h) of LIN 21/075 identifies the Japan – Australia Economic Partnership Agreement (JAEPA) as international trade obligations of Australia.
Having regard to its international trade obligations, the Tribunal finds that Australia’s obligations under CPTPP and JAEPA are invoked and as such the nominated position is LMT exempt.
Therefore, based on the evidence before it, the Tribunal is satisfied that the labour market testing condition does not apply to the applicant in this case.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
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 is liable to pay the training nomination charge as the application was made 8 November 2018. Item 5(2) of the Migration (Skilling Australians Fund) Charges Regulations 2018 sets out the formula for calculating the amount due, which is the base amount prescribed in the legislation multiplied by the number of years of sponsorship. In this case, the applicant’s business has an annual turnover of less than $10,000,000 and so the base amount is $1,200 (per Item 5(2)(b) of the Migration (Skilling Australians Fund) Charges Regulations 2018). The length of visa approval sought is 2 years. Therefore, the amount due is $2,400.
The applicant has provided the Tribunal with a copy of the receipt dated 8 November 2018 for payment of the relevant training nomination charge in the amount of $2,400. Therefore, the requirements of s.140GB(2)(aa) are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Karen McNamara
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2022] AATA 580

17 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction