V.D.G. PTY LTD (Migration)

V.D.G. PTY LTD (Migration) [2023] AATA 906 (29 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  V.D.G. PTY LTD
CASE NUMBER:  1926879
HOME AFFAIRS REFERENCE(S):          BCC2019/3811209
MEMBER:Amanda Mendes Da Costa
DATE:29 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 29 March 2023 at 1.47pm

CATCHWORDS
MIGRATION – nomination – Short-term stream – ICT Support Technicians – no adverse information known to Immigration – standard business sponsorship approval – position is genuine and full-time – AMSR determined is consistent with Australian labour market conditions – labour market testing requirements in s 140GBA are met – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 140GB, 360
Migration Regulations 1994, rr 2.72, 2.73
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 11 September 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 1 August 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 Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(1)(a) because the applicant had not demonstrated that the majority of tasks that the nominee was actually likely to perform aligned substantially with the tasks of the nominated occupation ICT Support Technicians nec ANZSCO 313199, as described in the ANZSCO dictionary.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review.
The documentation provided to the Tribunal for the purpose of the review includes the following:
·ABN extract from the Australian Business Register.
·Notice of Approval as a Standard Business Sponsor.
·Company taxation return for the financial year ended 30 June 2021.
·ATO Activity Statement for the period April 2022 to June 2022.
·Financial statements for the financial year ended 30 June 2021.
·Organizational chart.
·List of employees (NSW).
·Employment contract dated 28 October 2022 and updated employment contract dated 24 March 2023.
·Salary Justification reports.
·Nominee’s visa details for 2018, 2021 and 2022.
·Nominee’s English language test results dated 2 May 2019.
·Visa Entitlement Verification Online visa check for the nominee.
·2019 advertisement efforts in SEEK, Workforce Australia and INDEED.
·Letter, Natasha Projcevski, Accountant, dated 3 July 2019.
The Tribunal has also had regard to publicly available information on social media (including the applicant’s website) regarding the applicant’s business.
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.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the nomination was made using the approved online form and was accompanied by the correct fee; the applicant nominated an occupation under s 140GB(1)(b) of the Act and it identified, in the nomination, an applicant for a Subclass 482 visa as the person who will work in the occupation, ICT Support Technicians nec ANZSCO 313199; the applicant identified the location where the nominee would carry out the occupation (namely ICT Support Technicians nec); and, it included the name and 6-digit ANZSCO code for the nominated occupation, that is, ICT Support Technicians nec ANZSCO 313199. The applicant’s nomination also contains the required certifications. The Tribunal further notes that the applicant identified the nominee as Jatinder Grewal.
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
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 and has found no information to indicate 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.
Evidence before the Tribunal is that the applicant is a standard business sponsor. Departmental records confirm the applicant’s most recent sponsorship was approved on 21 November 2018 and is valid for five years until 21 November 2023.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no evidence that the Company owes any debt of the kind mentioned in s 140ZO of the Act, which refers to a nomination training contribution charge debtor a penalty in relation to the underpayment of such charge.
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.
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, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The applicant’s business was established in 2000 and has continued to operate since. It’s business activities involve the provision of a variety of commercial and retail cleaning, maintenance and security services to customers, including the following:
·Cleaning
Periodic and regular cleaning of windows, business premises, pressure washing, carpet steam cleaning, stripping and resealing of hard floors and emergency disaster recover.
·Washrooms
Installation and maintenance of washroom equipment including cleaning and replacement of toilet paper and paper towels.
·Pest control
Pest control advice and prevention and the provision of eradication services.
·Covid-19
Cleaning and sanitising premises and equipment, providing replacement equipment, and providing hand sanitising stock, disinfectant, face masks and other PPE.
·Security
Providing security patrols, mobile patrols, concierge services, event security and electronic security.
·Hospitality
Cleaning of commercial kitchens, including cleaning, detailing and sanitising in accordance with HACCP[1] specifications, including floors, walls, ceilings, benchtops, stainless steel surfaces and fittings.
·Garden and ground maintenance
Grass cutting and lawn mowing, turfing and grass seeding, tree lopping, weed control, planting and landscaping, and leaf and litter clearance.
[1] HACCP (Hazard Analysis and Critical Control Points) is a systematic preventive approach to food safety from biological, chemical and physical hazards that can cause the finished product to be unsafe and designs to reduce those risks to a safe level.
The applicant’s business operates from locations in Sydney, Melbourne, Adelaide, Perth, Brisbane and Chipping Norton NSW (where the nominated position is based).
On its website, the applicant advertises its use of an in-house developed attendance tracking software for the use by customers in ‘real-time’ monitoring staff, labour-tracking, geolocation capability, allocation of tasks and instant retorting of issues and complaints through the use of a software App.
The ANZSCO dictionary shows that ICT Support Technicians nec is part of Unit Group 3131 ICT Support Technicians who provide support for the deployment and maintenance of computer infrastructure and web technology and the diagnosis and resolution of technical problems. In Australia, most occupations in this Group Unit have a level of skill commensurate with an AQF Associate Degree, Advanced Diploma or Diploma and are categorized as Skill Level 2 in the ANZSCO dictionary.
The Tribunal notes that a comparison of the tasks set out in the ANZSCO dictionary for ICT Support Technicians and the nominee’s proposed duties and responsibilities shows the following:

ANZSCO tasks for ICT Support Technicians Nominee’s proposed duties and responsibilities

Determining software and hardware requirements to provide solutions to problems

·     Troubleshoot the applicant’s computer systems and network problems and diagnose and solve hardware and software faults.

·     Design and develop file storage mechanism to meet company needs and requirements.

·     Perform other organisational tasks as required from time to time.

·     Assist the management in choosing devices in consideration to the remote access requirements of the company.

·     Determine our software and hardware requirements to address our electronic security needs.

Responding to inquiries about software and hardware problems

·     Provide guidance to the applicant’s staff on the ICT acceptable use policy.

·     Provide support, including procedural documentation and relevant reports.

·     Provide support to the staff regarding our company application called IQcheckpoint – our inhouse application for staff management.

·     Deal with password issues of the staff and other stakeholders.

·     Diagnose and repair software or electronic hardware problems.

Adapting existing programs to meet users' requirements

·     Ensure that software programs are optimised and maintain up-to-date inventory of ICT software and licenses in office.

·     Maintain electronic mail accounts of the staff and the business and modify the accounts when appropriate.

·     Implement backups, including restoration of data.

·     Install software patches and upgrades on a regular basis which are very important to prevent security issues and improve compatibility and program features.

Installing and downloading appropriate software ·     Install computer hardware operating systems and applications required for the efficient operations of the business.

Ensuring efficient use of applications and equipment
·     Monitor and maintain computer systems and networks.

·     Perform checks to ensure that broadband connectivity is maintained.

·     Set up new users’ accounts and profiles.

·     Ensure efficient use of company equipment and applications used for access control or attendance system.

Implementing computer networks

·     Implement computer networks such as selecting LAN devices (e.g. hubs, bridges, switches and routers).

·     Utilise various WAN technologies used for connecting enterprise resources.

Designing and maintaining websites

·     Configure computer hardware operating systems and applications.

·     Develop a maintenance schedule for all computer hardware, software and networks and ensure that it is followed.

·     Design and maintain our company website.

Repairing and replacing peripheral equipment such as terminals, printers and modems
·     Replace hardware and parts as required.

·     Detect, diagnose and resolve most PC, printer and peripheral device faults.

The Tribunal is satisfied that the above comparison shows that the nominee’s proposed duties and responsibilities are commensurate with those for Unit Group 3131 occupations (included the nominated occupation) in the ANZSCO dictionary.
The Tribunal has reviewed the application and finds that the nominated occupation is for a Subclass 482 (Temporary Skill Shortage) visa in the short-term stream. Based on the above information, the Tribunal is satisfied that the occupation of ICT Support Technicians nec applies to the nominee as required by LIN 19/048 IMMI.
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.
Based on the evidence before it, including the business’s financial profile, organisational structure, operations of the business and the tasks to be performed by the nominee, the Tribunal is satisfied that the position associated with the nominated position is genuine and 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 LIN 19/048. 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 applicant has provided the Tribunal with an offer of employment dated 28 October 2022 and updated employment contract dated 24 March 2023, each containing an offer of employment for the nominee (in the position of ICT Support Technician nec) for a period of four years, commencing on the date of approval of his visa application. The offer indicates that the proposed salary for the nominee is $76,000 per annum plus superannuation.
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 IMMI 1/033. 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).
The income threshold specified in IMMI 18/033 is $250.000. The annualised salary of the nominee is given as $76,000 (plus superannuation). 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.
The evidence before the Tribunal shows that there is no Australian citizen or permanent resident working in the equivalent position at the same location within the business and the nominee’s employment in the nominated occupation is not covered by any fair work instrument, state industrial instrument or transitional instrument.
Therefore, in accordance with the methodology set out in IMMI 18/033, the AMSR for the nominated occupation in Sydney, NSW has been determined in reference to ‘relevant information’, which includes:
·Job advertisement posted on 2 June 2019 on Seek.com for an ICT Support Technician nec located in Chipping Norton, NSW with an advertised salary range of between $70,000 and $80,000.
·Job advertisement posted on 2 June 2019 on Indeed.com for an ICT Support Technician nec located in Chipping Norton, NSW, with an advertised salary range of between $70,000 and $80,000 per annum.
·Salary survey published on the Payscale.com website confirming the salary range in Australia for an ICT Support Technician is between $44,000 and $73,000 per annum with a median annual salary of $57,000.

Based on the above information, the Tribunal is satisfied that the AMSR has been determined by the applicant in accordance with the relevant method.
For these reasons, the requirements of reg 2.72(15)(c) are met.
The AMSR excluding any monetary benefits is $76,000, which is not less than the TSMIT of $53,000 (IMMI 18/033).
For these reasons, the requirements of reg 2.72(15(d) are met.
The employment contract for the nominee confirms that his annual earnings will not be less than the AMSR.
For these reasons, the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings, excluding any non-monetary benefits is still more than the TSMIT.
For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information known to the Department or the Tribunal indicating that the AMSR determined is inconsistent with Australian labour market conditions relevant to the occupation.
For these reasons the requirements of reg 2.72(15)(g) are met.
Accordingly, the requirements of reg 2.72(15) are met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
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.
There is no information known to the Department and/or the Tribunal that indicates that the employment conditions that 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.
Furthermore, there is no information known to the Department and/or the Tribunal that indicates the applicant has engaged in discriminatory practices and therefore reg 2.72(18)(b) is met.
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 instrument LIN 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 LIN 18/036.
Pursuant to that instrument, labour market testing is required to be undertaken in relation to the nominated occupation in the period of 4 months ending on the day on which the nomination is lodged. It must be advertised in English, on a national recruitment website, print media or radio and must include the title, skills or experience required, the name of the approved sponsor and the salary. Expressions of interest must be accepted for at least 4 weeks from when the advertisements is first published.
The nomination application states that ads were placed online on Seek.com and Indeed.com, copies of which were provided to the Tribunal. The Tribunal accepts that although the applicant received numerous applications in response to these advertisements, none of the candidates possessed the necessary skills and experience for the nominated position.
For these reasons, 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 business nomination application was lodged after 12 August 2018 and, therefore, the requirements of s 140GB(2)(aa) are applicable. However, as stated above, the application fee was paid by the applicant and there is nothing in the Departmental file to indicate that the nomination training contribution charge has not been paid.
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.
Amanda Mendes Da Costa
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)…

[2023] AATA 906

29 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

ANZSCO tasks for ICT Support Technicians	Nominee’s proposed duties and responsibilities
Determining software and hardware requirements to provide solutions to problems	· Troubleshoot the applicant’s computer systems and network problems and diagnose and solve hardware and software faults. · Design and develop file storage mechanism to meet company needs and requirements. · Perform other organisational tasks as required from time to time. · Assist the management in choosing devices in consideration to the remote access requirements of the company. · Determine our software and hardware requirements to address our electronic security needs.
Responding to inquiries about software and hardware problems	· Provide guidance to the applicant’s staff on the ICT acceptable use policy. · Provide support, including procedural documentation and relevant reports. · Provide support to the staff regarding our company application called IQcheckpoint – our inhouse application for staff management. · Deal with password issues of the staff and other stakeholders. · Diagnose and repair software or electronic hardware problems.
Adapting existing programs to meet users' requirements	· Ensure that software programs are optimised and maintain up-to-date inventory of ICT software and licenses in office. · Maintain electronic mail accounts of the staff and the business and modify the accounts when appropriate. · Implement backups, including restoration of data. · Install software patches and upgrades on a regular basis which are very important to prevent security issues and improve compatibility and program features.
Installing and downloading appropriate software	· Install computer hardware operating systems and applications required for the efficient operations of the business.
Ensuring efficient use of applications and equipment	· Monitor and maintain computer systems and networks. · Perform checks to ensure that broadband connectivity is maintained. · Set up new users’ accounts and profiles. · Ensure efficient use of company equipment and applications used for access control or attendance system.
Implementing computer networks	· Implement computer networks such as selecting LAN devices (e.g. hubs, bridges, switches and routers). · Utilise various WAN technologies used for connecting enterprise resources.
Designing and maintaining websites	· Configure computer hardware operating systems and applications. · Develop a maintenance schedule for all computer hardware, software and networks and ensure that it is followed. · Design and maintain our company website.
Repairing and replacing peripheral equipment such as terminals, printers and modems	· Replace hardware and parts as required. · Detect, diagnose and resolve most PC, printer and peripheral device faults.