Simba Pty Ltd ATF Simba Unit Trust (Migration)

Simba Pty Ltd ATF Simba Unit Trust (Migration) [2022] AATA 3040 (18 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Simba Pty Ltd ATF Simba Unit Trust
REPRESENTATIVE:  Ms Susela Nair (MARN: 0318887)
CASE NUMBER:  1908843
HOME AFFAIRS REFERENCE(S):          BCC2019/1529233
MEMBER:Mary Sheargold
DATE:18 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 18 August 2022 at 4:50pm

CATCHWORDS
MIGRATION – nomination – Medium-term stream– Accountant (General) – no adverse information known to Immigration – nominator is a standard business sponsor – labour market testing requirements in s.140GBA are not applicable –position associated with the nominated occupation was genuine and full-time–– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR, 359
Migration Regulations 1994, rr 2.72, 2.73, 5.19
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 29 March 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 applied for approval on 26 March 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the labour market testing requirement in s.140GBA of the Act because labour market testing for the nominated position was not undertaken in the required manner.
Ms Tabassum Mughal, the HR and payroll manager for Simba Pty Ltd as trustee for the Simba Unit Trust (the applicant) appeared before the Tribunal on 25 July 2022 by MS Teams video link to give evidence and present arguments. She was authorised to give evidence on behalf of the company director, Mr Satjit Singh who, due to age and poor health, was not fit to attend the hearing himself. The Tribunal also received oral evidence from the visa applicant, Miss Thi Ngoc Thuy Pham.
The applicant was represented in relation to the review. The representative attended the Tribunal 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.
On 7 March 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated and current evidence demonstrating that the applicant met all of the criteria in r.2.72 of the Regulations and s 140GBA of the Act (not just the criterion that the delegate found was not met). The Tribunal provided examples of the kind of information that would assist it to assess whether the applicant met the r.2.72 and s 140GBA criteria, and requested that the applicant provide the information by 21 March 2022.
On 17 March 2022, the applicant’s representative wrote to the Tribunal seeking an extension of time to provide the requested information. On 17 March 2022, the Tribunal responded to the request and granted an extension of time until 11 April 2022. On 11 April 2022, the representative provided the following documents:
·a current company extract for the applicant from the Australian Securities and Investments Commission (ASIC) dated 11 June 2021;
·detailed financial statements for the applicant’s business for the financial years ending on 30 June 2020 and 30 June 2021;
·copies of business activity statements (BAS) for the applicant’s business for each quarter from 1 January 2019 to 31 December 2021;
·a letter of engagement and position description for the nominee dated 22 March 2019;
·an organisational chart for the applicant’s business;
·a letter outlining the genuine need for the nominated position within the applicant’s business; and
·copies of advertisements placed for the labour market testing (LMT) requirement set out in s 140GBA of the Act; and
·market salary information for the nominated position.
Prior to the hearing, the applicant’s representative provided the Tribunal with a copy of the applicant’s notification of approval as a standard business sponsor, valid from the period from 15 June 2022 to 15 June 2027. After the hearing, additional submissions and evidence were provided relating to the labour market testing issue discussed during the hearing. The Tribunal has considered all of this documentary evidence, the documents contained in the Departmental file, and the evidence given by Ms Mughal and Ms Pham at the hearing, in reaching its findings.
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 is satisfied from its review of the Department’s file that:
·the applicant is nominating an occupation under s.140GB(1)(b) of the Act in relation to a proposed applicant for a Subclass 482 visa: r.2.73(1);
·the nomination was made using the approved form and was accompanied by the required fee: r.2.73(3), (4), and (5);
·the applicable training contribution charge was paid: r.2.73(5A);
·the nomination was made in the medium term stream as the nominated occupation of Accountant (General), ANZSCO 221111, is a medium and long term strategic skills specified occupation in the relevant instrument, IMMI 18/048: r.2.73(6);
·the applicant identified the nominee, Ms Thi Ngoc Thuy Pham: 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, and the annual turnover for the applicant: r.2.73(9);
·the nomination included written certification that the applicant had not engaged in conduct that contravenes 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: 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 Tribunal is satisfied that the requirements of r.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.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant has provided the Tribunal with a copy of its Notice of approval as a standard business sponsor issued to it by the Department on 15 June 2022. The approval ceases on 15 June 2027.
Therefore, the Tribunal finds that the requirements of r.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 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 Accountant (General), ANZSCO 221111, is specified in the medium and long term strategic skills list set out in IMMI 18/048. Inapplicability conditions 6, 19, and 21 apply to the nominee for this nominated occupation under IMMI 18/048.
Section 8 of IMMI 18/048 sets out the terms of those inapplicability conditions as:
·inapplicability condition 6: the position is a clerical, bookkeeper or accounting clerk position;
·inapplicability condition 19: the position is in a business that has an annual turnover of less than AUD1,000,000; and
·inapplicability condition 21: the position is in a business that has fewer than 5 employees.
There is considerable evidence before the Tribunal demonstrating that the nominee’s role of Accountant (General) requires high level accounting skills and the Tribunal is satisfied that the position is neither clerical, bookkeeping, nor an accounting clerk position. The genuine need statement relating to the occupation, the information gathered during the hearing regarding the tasks undertaken by the nominee on a daily basis, and the information regarding the structure of the back office of the applicant’s business have clearly demonstrated that the nominated occupation does not fall within the scope of inapplicability condition 6.
gathered during the hearing regarding the overall business structure makes plain that inapplicability condition 6 does not apply to the nominated occupation.
The applicant has provided its most recent financial statements, showing an annual turnover in excess of $18,000,000 per annum in the most recently reported financial year, and a turnover in excess of $17,000,000 the previous financial year. The organisational chart for the applicant’s business shows that there are currently 78 employees in the business. Therefore, the Tribunal is satisfied that inapplicability conditions 19 and 21 do not apply to the nominated occupation.
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.
The Tribunal accepts from the material provided, particularly the letter of engagement between the applicant and the nominee dated 22 March 2019 that the position is a full-time one.
The financial statements for the applicant’s business show strong and continued growth despite any impact of the Covid-19 pandemic. Ms Mughal’s evidence at the hearing is that Ms Pham has grown in the accounting role since she commenced work with the applicant as a graduate in 2017, and that the continued growth and expansion of the applicant’s business necessitates the employment of an in-house accounting team.
Based on all the evidence before it, the Tribunal is satisfied that the position of Accountant (General) within the applicant’s supermarket business is genuine. In particular, the Tribunal notes the difficulties relayed by Ms Mughal in hiring and retaining qualified, suitable staff for its business based in Western Australia after 2.5 years of pandemic conditions and the impact this has had in terms of widespread labour shortages.
For these reasons, the Tribunal finds that the requirements of 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 instrument for these purposes. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.
The Tribunal is satisfied that the nominated occupation of Accountant (General) is not specified in an instrument, and that the applicant has provided a copy of the most recent letter of engagement between itself and the nominee, dated 22 March 2019.
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. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), 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).
At the hearing, Ms Mughal confirmed the nominee’s salary is $65,000 per annum plus superannuation. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) applies.
The applicant sponsors many workers on temporary and permanent visas. The applicant’s standard employment terms encompass all standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Cth).
Accordingly, the Tribunal is satisfied that the nominee’s terms and conditions of employment will be no less favourable than the terms and conditions that would apply to an equivalent Australian employee, and so the requirements of r.2.72(18)(a) are met.
Further, there is no evidence before the Tribunal to suggest that the applicant has engaged in discriminatory recruitment processes. The Tribunal notes there is considerable evidence in the Departmental file as well as fresh evidence before the Tribunal regarding the applicant’s efforts to fill positions within its business. Therefore, the requirements of r.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 the Minister has determined it would be inconsistent with a specified international trade obligation.
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 LIN 18/059. 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 Tribunal’s first consideration in determining whether the LMT condition in s 140GBA applies to the nominated position is whether it would be inconsistent with an international trade obligation specified in the relevant instrument. The appropriate legislative instrument to consider is the one in force at the time of decision, which is LIN 21/075.
The nominee is a Vietnamese national. The Tribunal confirms that Item 5 of LIN 21/075 identifies the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) as an international trade obligation of Australia. Both Vietnam and Australia are signatories to the CPTPP and the Trans-Pacific Partnership.
Having regard to its international trade obligations, the Tribunal finds that under Annex 12-A to the CPTPP at Item E in the table states that Australia shall, upon application, grant the right of temporary entry, movement and work to Contractual Service Suppliers for each party to the CPTPP that has made commitments in the same manner. The Tribunal is satisfied that the nominee, Ms Pham, supplies her services as an accountant to the applicant under the terms of a written contract.
Therefore, the Tribunal is satisfied that it would be inconsistent with an international trade obligation of Australia to require LMT for the nominated occupation where Ms Pham, a Vietnamese national, is the nominee. 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 on 20 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 more than $10,000,000 and so the base amount is $2,400 (per Item 5(2)(b) of the Migration (Skilling Australians Fund) Charges Regulations 2018). The length of visa approval sought is 3 years. Therefore, the amount due is $7,200.
The Tribunal has reviewed the Departmental file and is satisfied that the relevant training nomination charge was paid at the time the application was made. 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.
Mary Sheargold
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 3040

18 August 2022

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