The Trustee for Rogers Family Trust Chroma Painting And Decorating (Migration)

The Trustee for Rogers Family Trust Chroma Painting And Decorating (Migration) [2022] AATA 4937 (8 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for Rogers Family Trust
REPRESENTATIVE:  Mrs Valentina Segreto (MARN: 1281543)
CASE NUMBER:  1904789
HOME AFFAIRS REFERENCE(S):          BCC2018/6156178
MEMBER:Nicola Findson
DATE:8 December 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 08 December 2022 at 9:14pm
CATCHWORDS
MIGRATION–nomination – Medium-term stream – Painting Trades Worker – no adverse information – position associated with the nominated occupation is genuine – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 359
Migration Regulations 1994, rr 1.13, 2.72, 2.73, 5.19
CASES
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 15 February 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 14 January 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 applicant trades as ‘Chroma Painting and Decorating’, in Perth, Western Australia. It has nominated the position of Painting Trades Worker (ANZSCO 332211), for approval.
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 position associated with the occupation was genuine.
Mr Nikolas Rogers, organisational representative of the applicant, appeared before the Tribunal on 2 December 2022, to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Mauro Sacco.
The Tribunal exercised its discretion to hold a video hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted in this way. Mr Rogers did not raise any concerns in relation to holding a video hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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.
During the review process, and in response to a s 359(2) invitation, the applicant provided the Tribunal with updated and current information to demonstrate the relevant requirements of reg 2.72, including but not limited to:
·ASIC and ABN records;
·Financial Statements for the years ended 30 June 2020 and 2021;
- Trust Tax returns for the years ended 30 June 2020 and 2021;
- Activity Statements for the periods ended 30 September 2020 to 31 March 2022;
- Business Activity Statements (BAS) for the period October 2021 to June 2022;
·Letter of support from the applicant’s accountant, setting out that the applicant is trading at a level that will meet its sponsorship obligations;
- Current organisational structure chart;
- Position description for the nominated position;
- Evidence of ongoing workload of the applicant business;
- Updated contract of employment between the applicant and the nominee, dated 2 August 2021;
- Payroll records (including payslips, PAYG Summaries, superannuation statements and ATO Income Statements) in relation to the nominee, for the period 2019 to 2022;
- Notification of approval as a standard business sponsor dated 12 February 2019;
- Advertising material in relation to the nominated position;
- Market rate information relevant to the nominated position;
- Written submissions addressing, among other things, the concerns of the delegate.
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) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1);
·the nomination was made using the approved form and fee, as per r.2.73(3), (4) and (5);
·the nomination was accompanied by the applicable training contribution charge, as per r.2.73(5A);
·the nomination was made in the Medium-term stream as the nominated occupation of Painting Trades Worker is a medium term specified skilled occupation in the relevant instrument, IMMI 18/048, as per r.2.73(6);
·the applicant identified the nominee, Mr Mauro Sacco, in the nomination, as per r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6 digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination, as per 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, as per r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).
For these reasons, the 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.
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.
For these reasons, it 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 Tribunal has checked the Department’s records and is satisfied that the applicant is approved as an SBS until 12 February 2024.
For these reasons, 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 Tribunal finds that the requirements of r.2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Painting Trades Worker (ANZSCO 332211) is specified in the Medium-term stream in IMMI 18/048. The Tribunal is further satisfied that the occupation of Painting Trades Worker is not subject to any of the occupational caveats set out in the notes to that instrument.
For these reasons the requirements of r.2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
As noted earlier in this decision record, the delegate was not satisfied that the position associated with the occupation was genuine. The delegate held concerns about the primary purpose of the nomination application being to facilitate the stay of the nominee in Australia, rather than to fill a genuine vacancy.
However, the Tribunal has formed the view, based on the evidence provided to it, that the position is genuine. The Tribunal has had the benefit of greater documentary evidence being provided to it by Mr Rogers, and of being able to take detailed oral evidence from Mr Rogers about the inception and growth of the applicant business, and why he wished the nominee to continue in his role in the business. The Tribunal also had the benefit of being able to take oral evidence from the nominee about his employment background and skills, his migration history and studies undertaken in Australia (English and Business), and his duties and responsibilities in the nominating business. The Tribunal records that it found both Mr Rogers and Mr Sacco to be credible witnesses who gave detailed evidence about the business.
Having considered all of the evidence before it, the Tribunal accepts that the position is that of Painting Trades Worker as submitted. The Tribunal has taken into account the applicant’s operations, current financial position, and the nominee’s contributions to the business based on his skills, expertise and length of service. The Tribunal notes the evidence before it that in the current climate, it is very difficult to find suitably qualified, experienced, and reliable employees to work on a full-time basis in the painting and decorating services industry.
The Tribunal is satisfied that the nominee has genuinely been carrying out the duties of a Painting Trades Worker (as described by ANZSCO) for the applicant for several years now. The Tribunal also accepts that the nominee has the requisite skills and considerable experience to perform the role, and that he will continue to be extremely important to the success of the applicant’s business operations.
The Tribunal finds, on the evidence before it, that the position is genuine, as required by reg 2.72(10)(a).
The contract of employment provides that the position is full-time for 38 hours per week. The nominee has been working with the applicant for almost 4 years and payroll material before the Tribunal indicates that he has been engaged full-time throughout most of this period. The Tribunal accepts from the material provided, that the position is a full time one. Accordingly, it finds that reg 2.72(10)(b) is met.
For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035. In 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 Painting Trades Worker is not specified in IMMI 18/035, and that the applicant has provided a copy of an updated contract of employment between it and the nominee dated 2 August 2021, which remains current.
For these reasons, the Tribunal finds that 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 ($53,900). 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).
Th current employment contract provides that the nominee will be paid a base salary of $56,200 per year, plus superannuation.
As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.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 r.2.72(18)(b) applies. There is no evidence before the Tribunal to indicate that the applicant has engaged in discriminatory recruitment practices and thus the Tribunal finds that r.2.72(18)(b) is met.
Nor is there anything to indicate that the nominee’s employment conditions (other than in relation to earnings) will be less favourable than those for an Australian equivalent employee(s).
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(18)(a) 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 IMMI 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.
In this case, the labour market testing condition applies to the applicant, having regard to the terms of LIN 20/029 and noting that the nomination is not subject to the major disaster exemption or the skill and occupational exemptions.
The nominator seeks to rely on job advertisements on Indeed.com.au and Adzuna.com.au to meet the labour market testing condition.
The advertisements were available for at least the requisite period of 4 weeks and the position was advertised within the 4 month period prior to the nomination, and therefore fulfills the labour market testing requirements for the nomination.
The supporting evidence of labour market testing set out on the nomination application referred to the advertisements posted on the Indeed and Adzuna websites, copies of which were provided. The content of the advertisements was essentially the same, stating that the position was for a full-time Painter, with a salary range of $50,000 to $60,000 per year and included a brief description of the applicant, the role, salary and location. The Tribunal finds that Indeed and Adzuna are recruitment websites with national reach in Australia, and that the advertisements were in English and identified the name of the approved sponsor, the title of the position, skills or experience required for the position and the salary of the position as required by s 8(4) of the instrument. The advertisements were created on 24 October 2018 and 16 November 2018 respectively and were published for a total period of 4 weeks. The Tribunal is satisfied that the applicant accepted applications for the position for the specified period from when each of the advertisements was first published.
Based on the evidence, the Tribunal is satisfied that the nomination was accompanied by the evidence required by s.140GBA(6A) and that labour market testing was undertaken in the relevant period prior to the nomination being lodged as required.
There is no evidence before the Tribunal that any Australians or permanent residents were made redundant or retrenched from the nominated occupation: s.140GBA(4A).
The Tribunal therefore finds that the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The Tribunal has before it a copy of a receipt dated 14 January 2019 issued by the Department to the applicant, in the amount of $5197.72 for the nomination and TSS-SAF levy-Small business. The amount of the levy, based on the turnover and visa period, would have been $4,800. It appears on the evidence provided that the requirements of s.140GB(2)(aa) are met.
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Nicola Findson
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 4937

8 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing