The Fiddler Pub Pty Ltd (Migration)

[2022] AATA 1028

The Fiddler Pub Pty Ltd (Migration) [2022] AATA 1028 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Fiddler Pub Pty Ltd

REPRESENTATIVE:  Mr Christopher William Agnew (MARN: 0210168)

CASE NUMBER:  1827927

HOME AFFAIRS REFERENCE(S):          BCC2018/2972796

MEMBER:Namoi Dougall

DATE:31 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 31 March 2022 at 9:36am

CATCHWORDS

MIGRATION – approval of a nomination – Short-term stream – position of Hotel or Motel Manager – nominated occupation and its code correspond to a specified occupation – licensed venue with no guest accommodation – genuine and full-time position – special skills in function management – employment conditions no less favourable – decision under review set aside     

LEGISLATION

Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140GB, 245
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73, 5.42

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2018 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).

2. The applicant applied for approval on 8 August 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10(a) because the delegate was not satisfied that the duties the nominee will actually perform will encompass the duties of the nominated occupation as the applicant operates a licensed venue that does not include guest accommodation.

4. Mr Peter Iwaniuk, a director of the applicant appeared on behalf of the applicant before the Tribunal on 10 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Shoko Kikuchi, the nominee.

5. The applicant was represented in relation to the review.

BACKGROUND

1. The business nomination application indicated that the nominee would be employed in the nominated occupation Hotel or Motel Manager (ANZSCO 141311) for a period of 2 years on a salary of $59,496 per annum for a 38 hour week. The location of the nominated position was stated as being Melbourne CBD, Victoria. The job title provided in the buisness nomination application was Hotel Duty Manager. The annual turnover of the business was stated to be $2,552,173. Further, the application indicated that there were 27 Australian employees and one overseas student.

2. At the hearing Mr Iwaniuk stated he has been in hospitality for 47 years. It is a bar and club and they do not have any rooms. The hotels no longer have rooms and when he bought various hotels before, he has renovated to remove the rooms and turn them into function areas. The applicant is one of largest licensed venues in Melbourne CBD and it has 4 levels including a basement. The 3 upper levels have function areas and there could be up to 1,000 to 1,400 people in the function areas at one time and he needs skilled people to run all of the different elements from the kitchens, function security and reception staff. He needs skilled people to manage the flow of people coming in, as it is a very large venue, provide customer service and ensure staff are doing their job and to deal with any issues such as a fall. There can be up to 198 security people to manage in flow and out flow. There are liquor and gaming laws that have to be complied with so he needs good people to manage the venue and the COVID pandemic made this difficult.

3. Mr Iwaniuk also stated at the hearing that the applicant needs to connect with different communities and the nominator is good with the Asian community. The Melbourne CBD used to have 200,000 students in the area who were good customers. He would like them to return to the venue now it is being relaunched and the applicant lacks skilled employees. She has a common thread, as the international students have clubs and associations she is familiar with and she can bridge the difference due to her connections with colleges and universities and clubs within the colleges and universities. The applicant has run different events for international students and the nominee has run these events.

4. 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

1. 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

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

2. The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant, Ms Shoko Kikuchi as the person who will work in the occupation as required by regs 2.73(1) and (8). The nomination was made using the approved form and the fee has been paid as required by regs 2.73 (3),(4) and (5). The nomination includes the location of Melbourne, Victoria at which the occupation will be carried out and includes the name, 6‑digit ANZSCO code of the occupation of Hotel or Motel Manager (ANZSCO 141311), the proposed period of stay of up to 2 years and the annual turnover for the nominator of AUD2,552,173 as required by reg 2.73(9). The nomination does not apply in the Labour Agreement stream and the occupation is for a Short-term skilled occupation in the Short-term stream as required by reg 2.73(6).

3. The nomination includes written certification that:

   ·The person has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.

   ·The employment contract with the nominee complies with or will comply with Commonwealth and State or Territory Laws unless the occupation is exempt as required by reg 2.73(13).

   ·The tasks of the position include a significant majority of the tasks specified in the ANZSCO or the relevant instrument if there is no ANZSCO code; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or the relevant instrument if there is no ANZSCO code; and, unless the occupation is exempt, the person is in the person’s business, if they are or would be an overseas business sponsor, or, the position is in the person’s business or an associated entity’s business, as required by reg 2.73(14).

4. The application fee was paid by the applicant and there is nothing on the Department’s file to indicate that the nomination training contribution charge has not been paid. Therefore, the Tribunal is satisfied that the requirements of reg 2.73(5A) have been met.

5. For these reasons, the Tribunal is satisfied the requirements in reg 2.72(3) are met.

No adverse information known to Immigration

1. 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.

2. Having regard to the facts, matters and circumstances available to the Tribunal, the Tribunal is satisfied that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.

3. For these reasons, the requirements in 2.72(4) are met.

Nominator is a standard business sponsor

1. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

2. The Tribunal finds that the applicant is a standard business sponsor pursuant to a valid sponsorship agreement for the period from 29 August 2018 to 29 August 2023, and that the application is for the Medium-term stream for the nominee.

3. For these reasons the requirements of reg 2.72(5) are met.

Payment of debt mentioned in s 140ZO

1. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

2. The Tribunal has no evidence before it that the person has any outstanding debt under s 140ZO.

3. For these reasons the requirements of reg 2.72(5A) are met.

Requirements for existing Subclass 457 or Subclass 482 visa holders

1. 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.

2. 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

1. 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.

2. The applicant has nominated the nominee in the application for the occupation of Hotel & Motel Manager (ANZSCO 141311).

3. The Tribunal has reviewed the application and finds that the nominated occupation is for a Subclass 482 (temporary skill shortage) visa in the Medium-term stream. The Tribunal is satisfied that the occupation of Hotel & Motel Manager applies to the nominee as required by the relevant legislative instrument, however, specified in the instrument is an inapplicability condition which, if relevant to the nomination, would make the occupation inapplicable for the nominee as a Subclass 482 visa applicant. The inapplicability condition is:

9        The position predominantly involves responsibility for low-skilled tasks
Example 1: Rostering, maintaining records, reception duties and allocating duties to housekeepers, porters or doorpersons
Example 2: Fruit picking or packing or feeding of livestock or animals .
Example 3: Truck driving.

1. In light of evidence and the findings made below in relation to reg 2.72(10(g), the Tribunal is satisfied that the position does not predominantly involve responsibility for low-skilled tasks and, therefore, the Tribunal is satisfied that the inapplicability condition is not relevant to the nominee as a Subclass 482 visa applicant.

2. For these reasons the requirements of reg 2.72(8) are met.

Position must be genuine and full time

1. 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.

2. Provided to the Tribunal was a position description for the nominated occupation which stated follows:

   As a Duty Manager – Functions at The Bottom End Pub. Diner. Disco, you will be required to perform – and will be continuously assessed in relation to your performance of – the following duties:

   ·recruiting personnel in accordance with the hotel's recruitment policy;

   ·identifying, developing and delivering training targeted towards enhancing the customer experience and operational excellence;

   ·conducting effective 1:1 meetings and annual staff performance reviews;

   ·ensuring effective and efficient rostering and payroll co-ordination to ensure sufficient coverage within budgetary requirements;

   ·ensuring that staff adhere to the hotel's values, principles and procedures such as OH&S requirements; attending weekly operation meetings to review, monitor and upgrade the performance of the hotel through dissemination of information, explaining new directions, and training initiatives;

   ·managing hotel revenue and yield in line with market demand and forecast;

   ·reviewing and implementing strategies to maximise sales;

   ·investigating security breaches, completing relevant forms and advising relevant authorities using the correct legal process;

   ·acting as the escalation point for patron grievances;

   ·reviewing, analysing and responding to customer feedback;

   ·ensuring that financial policies of the hotel are upheld and handling guest queries regarding credit matters and reporting any discrepancies in relation to same;

   ·issuing floats and keys in accordance with hotel procedures;

   ·managing the hotel's assets in all areas to protect their long-term investment value;

   ·ensuring the security, safety and storage of hotel assets, stock, cash and intellectual property; and

   ·such other duties as you may be assigned from time to time.

3. The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the position of Hotel or Motel Management (141311) and the tasks for the unit group 1413 Hotel and Motel Managers which are as follows:

   ·directing and overseeing reservation, reception, room service and housekeeping activities

   ·supervising security arrangements, and garden and property maintenance

   ·planning and supervising bar, restaurant, function and conference activities

   ·observing liquor, gaming, and other laws and regulations

   ·assessing and reviewing customer satisfaction

   ·overseeing accounting and purchasing activities

   ·ensuring compliance with occupational health and safety regulations

   ·may provide guests with local tourism information, and arrange tours and transportation

4. Further, in relation to the occupation of Hotel or Motel Manager the ANZSCO states as follows:

   Organises and controls the operations of a hotel or motel to provide guest accommodation, meals and other services. Registration or licensing may be required.

5. At the hearing Mr Iwaniuk stated that the nominee is currently working on a fundraiser for earthquake victims and she has to organise everything for the event by putting people together from the invitation to the actual event. She will break down the list of people needed, on the day she greets them and oversees the function, ensures the staff provide the right food and drink and that entertainment is right. She creates the event from the ground up and coordinates all the different elements for a function.

6. At the hearing Mr Iwaniuk stated that the nominee has the responsibility to come up with function ideas or how to create a function that a customer wants. She has to be customer sensitive as she has to speak with customers she has doorknocked or who have approached her. She has to create budgets, rosters and running sheets, ensure that all the running parts come together, and she does this on her own and only comes to Mr Iwaniuk to sign off. As part of her role, she takes into account how many patrons, the customer’s budget, what type of event it is, what sort of food and beverage is required, and, if required, how it should be advertised. The nominee will then liaise with the chef, beverage manager and head of security for the function so a quote can be finalised. She may also need to quote externally resourced staff including kitchen staff. The quote is agreed on or the function is within the budget and the nominee will again liaise internally and externally so all catering, beverage, staff and security areas know when and what they have to do. The nominee will prepare a running sheet. Customer liaison is a very important part of her role as she is the face of the applicant, she does the public relations and is the key person as she connects with the customer. Mr Iwaniuk stated that he does not have anyone who is as sensitive as the nominee and who can put themselves in other people’s shoes.

7. At the hearing Mr Iwaniuk stated that other tasks included managing and supervising all aspects of the applicant’s operation including: supervising reception; she also hires and trains reception staff for functions; monitors security staff and chooses who will be good for the function size; she ensures that the entertainment are performing the selected songs and that the kitchen and bar are serving the correct food and drink.   The nominee ensures that everything is delivered properly.

8. Mr Iwaniuk stated that functions are only one part of her duties, and that there is a day and night operation. The nominee at night also cashes up the tills and during the day she ensures the venue is prepared for the night trade. The nominee does pricing for the functions, makes decisions on design packaging and surveys what is happening in the market for prices for wine and beer so the applicant is competitive.

9. At the hearing the Tribunal referred to the employment contract which stated that the nominee would be employed full time but that the payslips indicated that she is working on a casual basis. Mr Iwaniuk stated he paid his staff to clean as he had enough financial backing to keep key staff during the lockdowns and COVID-19 restrictions in Melbourne. He needs the nominee as she has the contacts to get the people back into the business.

10. At the hearing the Tribunal asked when the nominee would be employed full time and Mr Iwaniuk stated that due to the pandemic, they had to employ people on a casual basis to minimise losses and keep people employed and the venue open. He has ensured key people could pay rent and feed themselves. It is only in the last couple of weeks that the has venue re-opened. The Tribunal asked the question again and Mr Iwaniuk stated that he would employ the nominee on a full-time basis as soon as she is granted the visa. The nominee is working now, and her hours are increasing as there are functions in the pipeline. The limited hours have changed dramatically as the kitchen has opened and functions are coming up.

11. At the hearing the nominee stated that she is a hotel manager with special skills in function management and she brings people into the venue. During the COVID-19 pandemic she was cleaning and maintaining the venue and ensuring equipment was functional. As the venue is now opening, she is organising a fundraiser for an earthquake which occurred 11 years ago. This requires her to organise staff, supply food and drinks, prepare a budget after deciding on pricing and build relationships with other communities to bring people into the venue which was her idea. The nominee also stated that she needs other people to advertise this event and bring people to it. For this event she has 105 other restaurants and other organisations: schools, international agencies, travel agencies, language schools who will be promoting the event and providing raffle prizes for the event.

1. The nominee stated at the hearing that her other duties include: organising performers for events; managing and selecting security staff; deciding on prices; devising special menus for food and drink; managing staff interviews, hiring and training staff; and ordering special stock. Functions are more focused on the customer and require the right food and drink to be chosen and liaising with customers.

2. At the hearing the nominee stated that her duties when she manages the venue include: managing staff; rostering; hiring and training staff, including OH&S training; customer complaints and feedback; preparing budgets for the venue; ordering stock but mainly drinks; however, for functions she also orders food; competitor surveys to see what the applicant does well or what can be improved; and she plans promotional activities including what to do, which people are to be involved in what events. She connects with students and corporate organisations to bring them back to the venue. The nominee stated that she also does duty management work but when there are more functions she will be focusing on the functions.

3. On the above evidence, the Tribunal is satisfied that the nominee currently performs nearly all of the tasks listed in ANZSCO for a Hotel or Motel Manager with the exception of those tasks relating to accommodation, therefore, on all the evidence the Tribunal is satisfied that the position associated with the nominated occupation is genuine.

4. Provided to the Tribunal was a signed employment contract dated 18 August 2018 between the applicant and the nominee. The employment contract indicated that the nominee’s renumeration for a 38 hour week is $59,426 per annum. The superannuation guarantee is in addition to the base wage. The employment contract also sets out other terms and conditions including leave entitlements. Subsequently, the Tribunal was provided with a letter of variation of her contract of employment dated 10 March 2022 which indicates that the applicant will be paid $63,912.50 in accordance with cl 4.1(a) of the contract.

5. Also provided were payslips for the nominee for the period 1 July 2021 to 30 September 2021 which indicated that the nominee worked hours ranging from 5.50 to 21 hours a week and is being paid $21.1868 per hour which is the equivalent of $45,448 per annum. Subsequently, the Tribunal was provided with a payslip for the period 7 March to 13 March 2022 (the salary variation) which indicates that the applicant is being paid a rate of $32.3445 per hour for 38 hours a week.

6. On the evidence the Tribunal is also satisfied that the position is full time.

7. For the above reasons the requirements of reg 2.72(10) are met.

Employment under contract

1. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035. In 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.

2. As referred to above, the Tribunal has been provided with the employment contract dated 7 August 2018 and the variation dated 10 March 2022. For these reasons the requirements of reg 2.72(11) are met.

Annual earnings

1. 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).

2. The employment contract dated 7 August 2018 between the applicant and the nominee indicated that the nominee’s salary would be $59,496.25 for a 38 hour week. Other terms and conditions include leave and termination pay entitlements. As referred to above, subsequently, the Tribunal was provided with the salary variation which indicates that the applicant will be paid $63,912.50 in accordance with cl 4.1(a) of the contract. The amount specified in the relevant instrument for the purposes of reg 2.72(15)(b) is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

3. At the hearing the Tribunal inquired about James Murry and Mr Iwaniuk stated that they had hoped to start training him as a Duty Manager, but the government shut them down and they are only opening the venue this week so have not been able to train him. They only opened last week and will have an event on 26 March 2022. Last year they were only opened spasmodically due to lockdowns and restrictions. On the evidence the Tribunal is satisfied that there is not an Australian employee performing equivalent work at the same location.

4. As there is no Australian worker performing equivalent work at the same location then the annual market salary rate is determined in accordance with s 8 of the relevant instrument. The business nomination application referenced a Fair Work Award, the Hospitality Industry (General) Award 2010 MA00009 (the Award) and stated that under cl 27.2 of that Award the current minimum annual salary for an employee classified as Managerial Staff (Hotels) is $59,496. A copy of the Award was also provided.

5. The Award was updated in 2020 and the equivalent clause of the Award now is cl 25.1 which refers to Managerial Staff (Hotels) who are paid a salary of at least 125% of the minimum salary set out in cl 18.2. The minimum salary set out in cl 8.2 is $51,130 and 125% of that salary is $63,912.50. The salary variation indicates that the applicant will be paid a salary of $63,912.50 in accordance with the Award.

1. In the circumstances of this review there is no Australian citizen employee performing equivalent work at the same location and there is an applicable relevant Fair Work instrument, therefore, the annual market salary rate is to be determined in accordance with s 8 of the relevant instrument. The Award is the applicable relevant Fair Work instrument and as referred to above the salary for Managerial Staff (Hotels) is 125% of the minimum salary rate which is $63,912.50.

2. As the annual salary rate has been determined in accordance with the relevant instrument and is greater than the TSMIT, the requirements of reg 2.72(15)(c) and 2.72(15)(d) are met.

3. Further, on the above the Tribunal is satisfied that the nominee’s annual earnings in relation to the nominated occupation will not be less than the rate for the occupation and, excluding non-monetary benefits, not less than the TSMIT. Therefore, the Tribunal is also satisfied that the requirements of regs 2.72(15)(e) and 2.72(15)(f) are met.

4. Further, the Tribunal has considered the entirety of the Departmental file provided to the Tribunal and there is no information on the file to indicate that there is any information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation. Therefore, the Tribunal is satisfied that the requirements of reg 2.72(15)(g) are met.

5. On the above, the Tribunal is satisfied that the requirements of reg 2.72(15) are met.

Employment conditions

1. 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.

2. 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.

3. The Tribunal has considered the information and evidence provided to the Department and Tribunal, including the employment agreement dated 7 August 2018. There is no information before the Tribunal which indicates that 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)(a) are met.

4. Further, there is no information before the Tribunal which indicates that the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of reg 2.72(18)(b) are met.

Labour market testing

1. 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.

2. In the circumstances of this review labour market testing would be inconsistent with a specific international trade obligation as listed in the relevant legislative instrument IMMI 17/109 as the nominee is a Japanese citizen. Therefore, the labour market testing requirements in s 140GBA are not applicable.

Nomination training contribution charge

1. 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).

2. The business nomination application was lodged before 12 August 2018 and, therefore, the requirements of s 140GB(2)(aa) are not applicable.

3. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Namoi Dougall
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.

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

2. 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.

3. 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.

1. 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.

1. 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.

2. 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.

3. 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.

4. 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.

1. 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.

2. 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.

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

4. 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.

5. 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.

1. 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.

2. 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.

3. 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.

4. …