SK ONTIME PTY LTD (Migration)

SK ONTIME PTY LTD (Migration) [2024] AATA 580 (19 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SK ONTIME PTY LTD
REPRESENTATIVE:  Ms Jackie Lyon (MARN: 0401336)
CASE NUMBER:  2201198
HOME AFFAIRS REFERENCE(S):          BCC2021/1005800
MEMBER:SM Michael Cooke
DATE:19 March 2024
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 19 March 2024 at 11:48am
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – carpenter – genuine position – carpentry or maintenance – tasks of position and totality of evidence, including photos from jobsites – labour market testing inconsistent with international trade obligation – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 January 2022 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 29 April 2021. 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 Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10) because the delegate did not find the nominated position was ‘genuine’.
The applicant’s representative has tendered copious additional information pursuant to reg 2.72. In particular, she has addressed the issue of the ‘genuineness’ of the nominated position.
The Tribunal finds it has sufficient evidence to finalize the decision ‘on the papers’ without recourse to a hearing.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
Findings and reasons about whether the process in reg 2.73 was followed considering the matters below:
·The person is nominating an occupation under s 140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or a proposed applicant for a Subclass 482 visa: reg 2.73(1);
·The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);
·The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);
·The nomination is in the Short-term stream if the occupation is a short term specified skilled occupation, or the Medium term stream if the occupation is a medium and long term strategic skills specified occupation: reg 2.73(6);
·The applicant has identified the nominee in the nomination: reg 2.73(8);
·The nomination includes the name of the occupation and the corresponding 6 digit code, the location/s 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 nomination, and any other specified information: reg 2.73(9);
·The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);
·The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, unless the occupation is exempt: reg 2.73(13);
·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code; and, unless the occupation is exempt that the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14).
The tribunal finds from the evidence on file that 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 finds no evidence that there is any adverse information known to Immigration 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.
The Tribunal finds from contemporary evidence before it that the person 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.
The Tribunal finds no evidence that the person has any outstanding debt under s 140ZO.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
The Tribunal notes that evidence has been provided that the nominee satisfies any language test requirements in the relevant Instrument which would apply if he were a nominee for a Subclass 482 visa in the Medium-term stream as applicable.
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 Tribunal finds that the nominated occupation and its 6-digit code (Carpenter – 331212) correspond to an occupation and 6-digit code specified in the relevant Instrument.
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 delegate found that:
To support claims of genuineness, the applicant has provided a genuineness submission letter, which outlines that, "the main activities of the company consists of property maintenance for residential and commercial properties, school maintenance, strata maintenance, commercial fit outs and home building and renovations and fits within the construction and building sector." Based on the description of the nature of the business, it is evident that a main function of the business is not to provide carpentry services, but instead provide a range of "maintenance" services. Whilst I acknowledge that a function of the business has carpentry aspects, the applicant has not provided detailed information or evidence as to the kinds of work the business has won or has completed in the past. In the absence of this information, I cannot be satisfied that a large majority of the business is to provide carpentry services. I have considered the nature of the business and the services it predominantly provides whilst assessing whether the position and occupation of carpenter is genuine.
The genuineness submission also outlines that, "the nominee would be involved in all aspects of the main activities of the business, the nominee would be erecting structures, repairing and maintaining property, making cabinets and mouldings and installing wall panels." The position description provided also outlines tasks including but not limited to, “prepare drawings for cabinetry, framing and other construction projects on-site, select and evaluate materials for defects and install cabinets, counters and moulding”. In consideration of the nature of the business and the information provided in the position description and submission, it appears that the position is more closely aligned with that of a cabinet maker, or a general all-rounder labourer position. As a result, I am not satisfied that the roles and duties align substantially with the nominated occupation of Carpenter, or that the nominee would be spending the significant majority of their time undertaking duties aligned with that of a Carpenter, as outlined by ANSZO.
In addition, the applicant has also provided an organisational chart. The organisational chart provides little context in relation to the roles undertaken by other employees and does not include any information about the nominated occupation or position. The organisational chart also outlines that the business has use for subcontractors but does not provide any information as to the role or kind of work these subcontractors undertake. The organisational chart also does not provide any information about which aspects of the business the employees conduct their work. For example, the information does not indicate if an employee predominantly undertakes work in building and construction or in property maintenance.
As such, this evidence does not substantiate that the tasks and duties associated with the position align with that of a Carpenter, or that the nominee will be spending the significant majority of their time working as a carpenter and not as another role such as a repair man or general labourer.
I acknowledge that the applicant has provided photographs to support the duties of the nominee, however based on the submission statement, organisational chart and position description, the photographs provided appear generic and do not alleviate the original concerns raised.
The applicant’s representative has addressed the ‘genuineness’ of the nominated position as follows:
Dear Presiding Member,
In response to the invitation to provide information in relation to the “genuineness” of the position of CARPENTER (ANZSCO 331212)
The nominating company SK Ontime Pty Ltd operates within the building and construction industry and provides services such as Carpentry/Joinery, painting, and property maintenance to residential and commercial projects.
The role of a carpenter within the business is crucial and aligns with the business model with most of the projects for the business involve building new frames for dwellings, maintenance of properties for customers such as building/repairing cabinets, laying flooring, build walls/repair walls, install windows, ceilings, and roofs.
The company submits that the position of a carpenter within the business is genuine and without the services of a qualified and highly skilled carpenter, the company would find it extremely difficult, if not impossible to be able to trade within the industry and provide the services they currently offer to clients.
Having considered the delegate’s decision in the light of the totality of the evidence before it (including photographic evidence from jobsites) the Tribunal agrees that "the nominee would be involved in all aspects of the main activities of the business, the nominee would be erecting structures, repairing and maintaining property, making cabinets and mouldings and installing wall panels."
The Tribunal finds that the position associated with the nominated occupation is ‘genuine’ and the position is full-time.
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. 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 finds that the nominated occupation is specified in the relevant Instrument and the nominee will be engaged as an employee under a written contract of employment by the applicant or an associated entity; and the applicant has given the Minister a copy of the contract signed by the employer and nominee.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the Instrument. 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 the Instrument: 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 (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).
The Tribunal finds that the nominee’s annual earnings ($60,000) are at least the amount specified in the relevant Instrument for reg 2.72(15)(b).
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) does apply and there is no evidence of discriminatory recruitment practices.
The Tribunal finds that there is no information which indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18) 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 the Instrument. 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 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 manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in Instrument IMMI 18/036.
Findings and reasons about:
The Tribunal finds that the labour market testing condition does not apply to the applicant, having regard to:
a. whether it would be inconsistent with an international trade obligation determined in the relevant Instrument – s 140GBA(1)(c);
The applicant’s representative informs that Labour Market Testing was not conducted in the lead up to the application as the nominee was from South Korea.
The Tribunal finds, therefore, that to have done so would have been inconsistent with an International Trade Obligation as set out in the legislative Instrument at the time.
b. whether the nomination is subject to the major disaster exemption or the skill and occupational exemptions – s 140GBB and s 140GBC;
Not relevant.
(a) if relevant, the nomination was accompanied by information about recent retrenchments/redundancies – s 140GBA(3)(b)(ii);
Not relevant.
(b) there is any suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder not readily available to fill the nominated position – s 140GBA(3)(d); and
The applicant indicated to the Department that following interviews ‘no suitably skilled workers are available to carry out the duties from the local market’.
(c) if any Australians or permanent residents were made redundant/retrenched whether the testing post-dates the redundancies or retrenchments – s 140GBA(4A).
The applicant has informed the Tribunal that no redundancies or retrenchments of an Australian citizen or permanent resident were made in the four months leading up to the nomination application.
For these reasons, the labour market testing requirements in s 140GBA are met or 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 finds that the applicant is liable to pay the charge. The amount of the charge payable is ($5,130) and the applicant has paid the charge.
For these reasons 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.
Michael Cooke
Senior 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)…

[2024] AATA 580

19 March 2024

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