Wagyu Pty Ltd (Migration)

Wagyu Pty Ltd (Migration) [2023] AATA 2849 (4 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Wagyu Pty Ltd
REPRESENTATIVE:  Ms Rowena Jane Hallam (MARN: 0429550)
CASE NUMBER:  1929436
HOME AFFAIRS REFERENCE(S):          BCC2019/3987176
MEMBER:George Hallwood
DATE:4 August 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 04 August 2023 at 12:09pm

CATCHWORDS
MIGRATION–nomination – Short-term stream – no adverse information– applicant is the standard business sponsor – Tasks correspond to specified occupation – application is compliant –– genuine need to employ a paid employee to work in the position – position associated with the nominated occupation is genuine – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 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 26 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 12 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 r 2.72(10) because they were not satisfied the position associated with the nominated occupation was genuine.
Mr Eoin O’Neill appeared before the Tribunal on behalf of the applicant on 25 May 2023 to give evidence and present arguments. As this is a combined hearing with that of the related nominee, the Tribunal also received oral evidence from Mr Justin Peter McQuaid.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has considered the nomination application and documents provided with the nomination dated 12 August 2019 and finds:
· Wagyu Pty Ltd is nominating an occupation, Transport Company Manager, under s 140GB(1)(b) in relation to Mr McQuaid, a holder of a Subclass 457 visa: reg 2.73(1);
·     The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);
·     The nomination was accompanied by the applicable nomination training contribution charge: reg 2.73(5A);
·     The nomination is in the Short-term stream and the occupation, Transport Company Manager is a short term specified skilled occupation in the instrument LIN 19/048: reg 2.73(6);
·     The applicant, Wagyu Pty Ltd, has identified the nominee, Mr McQuaid, in the nomination: reg 2.73(8);
·     The nomination includes: the name of the occupation, Transport Company Manager, and the corresponding 6 digit code 149413; the location at which the occupation will be carried out, postcode 2136; the proposed period of stay for a visa granted on the basis of the nomination, up to two years; the annual turnover for the nomination; and other information specified in the instrument IMMI 19/048: reg 2.73(9);
·     The nomination includes written certification that the applicant has not engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);
·     The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws: reg 2.73(13);
·     The nomination includes written certification that the tasks of the position include a significant majority of the tasks of the nominated occupation as listed in the ANZSCO Dictionary, Legislative Instrument or Labour Agreement; that the qualifications and experience of the nominee (a four year Bachelor of Science (Hons) in Transportation from the University of Ulster and four years of experience in transport company management) are commensurate with those specified for the occupation in ANZSCO; and, the position is in the applicant’s business: reg 2.73(14).
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.
The application states that there is no “adverse information to declare about the applicant or a person associated with the applicant, including any information relating to the contravention of Australian laws, insolvency, sponsorship breaches and/or other circumstances which might reasonably be considered adverse information”. Mr O’Neill told the Tribunal that this is still the case.
There is nothing before the Tribunal to suggest 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.
Departmental records show that the applicant was a standard business sponsor from 7 August 2017 to 6 August 2022.
The applicant has provided the Department of Home Affairs notification of approval as a standard business sponsor dated 16 September 2022 effective until 16 September 2027. Therefore, the Tribunal is satisfied the applicant is a standard business sponsor.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
Mr O’Neill told the Tribunal that the applicant has no nomination training contribution charge or a penalty relating to the payment of such a charge owing to the Commonwealth.
There is nothing before the Tribunal to suggest there is an outstanding debt relating to the nomination training contribution 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).
The applicant has listed on the nomination Ms Paula Molloy who was a subclass 457 visa holder who was granted a visa on 8 September 2015 on the basis family membership related to Mr McQuaid. Ms Paula Molloy is listed on the current application as an applicant on the basis of family membership.
For these reasons the requirements of reg 2.72(6) are met.
At the hearing Mr O’Neill told the Tribunal that the Minister had not requested evidence that the nominee met the language test.
The nominee has a United Kingdom passport. The instrument IMMI 18/032 sets out that an applicant who is s citizen of, and who holds a valid passport issued by the United Kingdom is an exempt applicant.
For these reasons the requirements of reg 2.72(14) are met.
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 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The nominated occupation, Transport Company Manager, and its 6-digit code, 149413 correspond to an occupation and 6-digit code specified in the instrument IMMI 19/048.
The nominated occupation is subject to applicability conditions 9, 19, and 21 specified in the relevant instrument:
9 - The position predominantly involves responsibility for low-skilled tasks.
19 - The position is in a business that has an annual turnover of less than AUD1,000,000.
21 - The position is in a business that has fewer than 5 employees.
The applicant provided a position description for the position as well as an estimate of the time spent performing the various tasks of the position. On the basis of this information the Tribunal is satisfied that the position associated with the nominated occupation does not predominantly involve responsibility for low skilled tasks and therefore is not subject to applicability condition 9.
Financial reports provided by the applicant satisfy the Tribunal that the business has an annual turnover of at least $1 million and therefore the position associated with the nominated occupation is not subject to applicability condition 19.
The applicant provided the Tribunal with an undated organisation chart that indicates the business has seven employees including the nominee’s position. Mr O’Neill told the Tribunal that the salaried staff consisted of three people and that the business also had four more contractors. The latest financial information provided to the Tribunal supports these numbers. The requirement is that there be five employees or more. Mr O’Neill told the Tribunal that the employees were employed as contractors, as was normal in the transport industry. In itself this is not enough to satisfy the Tribunal that there are at least five employees needed to satisfy the applicability condition 21 of the instrument IMMI 19/048. The Tribunal must be satisfied that the contractors are employees. Employees are not defined with respect to this section of the Act. Finding whether someone is a contractor or an employee for the purpose of the instrument will ultimately be a finding of fact for the Tribunal. The label placed on the relationship by the parties is not definitive. Mr O’Neill told the Tribunal that the business pays workers’ compensation for their contractors.
The High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 provides useful guidance in determining whether a person is a contractor or an employee. The critical differences between an employee and an independent contractor are: an employee serves in your business, and performs their work as a representative of your business; an independent contractor provides services to your business and performs work to further their own business. While the old multifactorial test[1] is no longer used, the indicators are still relevant in informing a decision of whether a person is an employee.
[1] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24
A post hearing submission from the applicant states that:
·the business maintains full control of how, when and where the work is performed;
·the business sets the hours and days of work;
·the business provides direction as to where the work is to be performed, and the manner in which it is to be done;
·all work is performed in vehicles owned and operated by the business and under the specific direction of the employer;
·there is an expectation of ongoing work, that is, workers are not simply engaged to complete a specific task;
·workers are expected to perform all tasks required of them personally and are not permitted to delegate responsibility;
·all risks associated with the work are assumed by the employer;
·workers are regarded as representatives of the employer, acting on the employer’s behalf;
·the employer monitors and enforces the standard of work and all outcomes
The applicant also submitted that the contract between the parties is not to achieve a specific result, but is rather for the labour of the worker, which strongly suggests the relationship is properly described as employer and employee.
On the basis of the post hearing submission together with Mr O’Neill’s oral evidence the Tribunal is satisfied that the applicant has at least 5 employees and the position associated with the nominated occupation is not subject to applicability condition 21.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The position description for the position provided by the applicant closely aligns with the occupation as described in ANZSCO.
The applicant provided a statement dated 9 August 2019 stating that they had a genuine need for the full-time position associated with the nominated occupation.
Mr O’Neill told the Tribunal that the position has been filled on a full-time basis when Mr O’Neill was allowed to work full-time by his visa, since August 2019 but was paid as a contractor. Mr O’Neill told the Tribunal that nearly all of his staff were currently paid as contractors as was normal in the transport industry, but they were treated as employees for the purpose of workers’ compensation and other costs.
The applicant’s most recent financial information showed sales salaries and profits showing that the business was able to financially support the position. An updated employment agreement dated 5 June 2023 was provided to the Tribunal post hearing. The contract describes the position as permanent and full-time.
The Tribunal is satisfied that the requirements of the position associated with the nominated occupation closely aligns with the occupation as described in ANZSCO and other occupational descriptions and that there is a genuine need for the business to employ a person full-time in that position.
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 an instrument as exempt. 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 a contract of employment dated 5 June 2023. The Tribunal finds that the nominated occupation is not specified in the relevant instrument and that the nominee will be engaged as an employee under a written contract of employment by the applicant. The applicant has given the Minister a copy of the contract signed by the employer and nominee.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument 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).
As the annual earnings in relation to the occupation will not be at least the specified amount - $250,000, the requirements of reg 2.72(15) must be met.
The applicant’s submission of 9 August 2019 states that they do not employ an Australian in a similar position.
At the hearing Mr O’Neill told the Tribunal that there is no fair work instrument, state industrial instrument or transitional instrument that is applicable to an Australian worker employed in the same workplace, at the same location and performing similar work to the nominee.
In these situations the annual market salary rate for an equivalent nominated occupation or an occupation in relation which a position is nominated under regulation 5.19 of the Regulations, must be determined by reference to relevant information. This may include, relevantly: information published on the Australian Government’s Job Outlook website and remuneration surveys generated across the relevant industry by a reputable organisation or body.

Mr O’Neill told the Tribunal the applicant looked to Job Outlook, Payscale, and Adzuna to determine the rate of the annual market salary for the nominated occupation. The Tribunal is satisfied as to the annual market salary rate for the nominated occupation of $95,000 pa and that it has been determined by the applicant in accordance with the relevant instrument.
For these reasons the requirements of reg 2.72(15)(c) are met.
The rate of $95,000 is not less than the TSMIT of $53,900.
For these reasons the requirements of reg 2.72(15)(d) are met.
The nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation which is $95,000.
For these reasons the requirements of reg 2.72(15)(e) are met.
The nominee’s annual earnings of $95,000 excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT of $53,900.
For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation of Transport Company Manager. Post hearing the applicant reviewed the annual market salary rate and annual salary. Using the web sites: Indeed; Glassdoor; Payscale; and Talent; the applicant determined a new market rate of $100,000 and this amount is now reflected in the nominee’s salary in their latest employment contract. The Tribunal is satisfied that this new salary is consistent with Australian labour market conditions.
For these reasons the requirements of reg 2.72(15)(g) 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.
The contract of employment dated 5 June 2023 contains a standard set of employment conditions consistent with the National Employment Standards of the Fair Work Act 2009.
The Tribunal is satisfied that there is no information that indicates the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.
There is no information before the Tribunal to indicate 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
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 IMMI 18/036. In addition:
·the nomination must be accompanied by the evidence specified 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.
The Tribunal finds that labour market testing would not be inconsistent with an international trade obligation determined in the instrument LIN 21/075 – s 140GBA(1)(c).
The Tribunal finds the nomination is not subject to the major disaster exemption or the skill and occupational exemptions as per IMMI 18/058 – s 140GBB and s 140GBC and is therefore subject to labour market testing conditions.
Based on advertising receipts from July 2019 the Tribunal is satisfied that labour market testing has been undertaken in the specified period, that is in the period of 4 months ending on the day on which the nomination form in relation to the nominated application is lodged as per IMMI 18/036.
Based on oral and documentary evidence the Tribunal is satisfied that advertising for the position consisted of two advertisements commissioned by the approved sponsor on recruitment websites with a national reach and included the description of the position, skills and experience required, the name of the approved sponsor, and the salary for the nominated position. The position was also advertised more than four weeks prior to the position being filled. IMMI 18/036 – ss 140GBA(3)(aa) and (5).
The Tribunal is satisfied based on the nomination documents that the nomination was accompanied by evidence of the labour market testing as per IMMI 18/036 – ss 140GBA(3)(b)(i) and (6A).
Mr O’Neill told the Tribunal that no one was retrenched or made redundant in relation to the nomination. The position came about as a result of the applicant winning a new contract that required a specialist Transport Company Manager to be employed.
The Tribunal is satisfied that no Australians or permanent residents were made redundant/retrenched – s 140GBA(4A).
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).
As the nominee was a subclass 457 visa holder at the time of nomination, the applicant is liable to pay the nomination training contribution charge.
The applicant paid the charge and provided the receipt dated 12 August 2019 for $2,766.04 to the Tribunal. For these reasons the requirements of s 140GB(2)(aa) are met.
Concluding paragraph
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.
George Hallwood
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 2849

4 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Standing