1404373 (Migration)

[2015] AATA 3916

1404373 (Migration) [2015] AATA 3916 (24 December 2015)

DECISION RECORD

APPLICANT:  Cheng Yan Pty Ltd

MRT CASE NUMBER:  1404373

DIBP REFERENCE(S):  BCC2013/1446751

TRIBUNAL MEMBER:  Don Smyth

DATE:24 December 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 24 December 2015 at 3:13pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 February 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2.The applicant applied for approval on 11 September 2013. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the 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. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3.The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(c) because the delegate was not satisfied that the terms of conditions of employment of the person identified in the nomination would be no less favourable than the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location.

4.Mr Wing On Wong, a director of the applicant company, appeared before the Tribunal on 3 February 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5.The applicant was represented in relation to the review by its registered migration agent.

6.For the following reasons, the Tribunal has decided affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

Summary of Claims and Evidence

8.The nomination application lists the nominated occupation as “Sales and Marketing Manager”. It gives an address in Fortitude Valley as the address at which the person will be employed. The proposed period of employment was 48 months. The nominee identified in the application is Mr Wing On Wong. Mr Wong confirmed at hearing that he is a director of the applicant company.

9.According to the application, there are no Australian employees in the workplace performing equivalent work to the nominated occupation. The employment would be under an employment contract. The base rate of pay and guaranteed annual earnings as set out in the application was $93,000.

10.With regard to the details of the position, the application indicated that the responsibilities would be to manage a butchery business and trade a butchery business successfully. Duties included purchasing stock from various meat suppliers, to sell to the general public at a retail outlet, to sell meat to various restaurants in bulk purchase, to keep and prepare records as required and to maintain food hygiene as required. Reference was made to an ability to speak and write Chinese as most clients and suppliers were Chinese restaurants or cafes. It was certified that the tasks of the position included a significant majority of the teaks of the nominated occupation as listed in ANZSCO.

11.On 16 January 2014, the Department wrote to the applicant requesting additional information.  Clarification was sought as to the base salary for the position. The applicant was asked for an explanation as to why the proposed base salary was being paid. Evidence was also requested to show that the proposed terms and conditions of employment for the nominee were not less favourable than what would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. The applicant was asked for further evidence demonstrating that the position associated with the nominated occupation was genuine. The Tribunal notes that the letter from the Department indicated that the applicant had provided a statement addressing the genuineness of the decision and a signed contract with a base rate of $97,000. While these do not appear on the Department’s file, the Tribunal asked Mr Wong about these documents at the hearing. The applicant’s representative provided what he indicated were the current version of the contract, a Genuine Position and Market Salary Report and the Labour Market Test report, and confirmed that these were the documents to which the applicant wished the Tribunal to have regard. The Tribunal was informed that the Genuine Position and Market Salary Rate report and the Labour Market testing report were updated, and that it should have regard to these rather than the earlier versions. It was informed that the contract was the current agreement to which Mr Wong wished the Tribunal to have regard.

12.On 20 February 2014, the delegate made a decision to refuse the application for approval of the nomination. The delegate concluded that the evidence that had been submitted was not sufficient to demonstrate that the terms and conditions of employment were no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident performing the equivalent work at the same location.

13.Mr Wong, the director of the applicant company, attended a Tribunal hearing on 3 February 2015.

14.At the hearing, the Tribunal explained to Mr Wong the requirements for the nomination to be approved.

15.At the hearing, Mr Wong confirmed that Cheng Yan traded as Dixon Butchery. He stated that it was a wholesaler. He stated that it sold pork, beef, chicken and lamb. When asked whether it did any retail at all, he replied, “Not that much.” Mr Wong indicated that, when it was doing its wholesaling, Dixon Butchery sold to restaurants in the Brisbane area, on the Sunshine Coast and Gold Coast, and in surrounding areas. Mr Wong indicated that he and his wife were the directors of Cheng Yan Pty Ltd which traded as Dixon Butchery.

16.Mr Wong then confirmed that Dixon Butchery had only a limited retail operation. He went on to indicate that Dixon Butchery operated a butcher shop in Chinatown and that it was involved in retail sales at a butcher shop. Mr Wong indicated that the business employed four people. He said that one was a butcher, there was a chicken deboner, there was a person who did selling at the counter of the butcher shop and there was a person who was a delivery driver.

17.Mr Wong confirmed that the contract he had provided at the hearing was the current contract and that the salary was $97,000.

18.The Tribunal referred to the requirements of r.2.72(10)(c). Mr Wong indicated that there was no Australian citizen or permanent resident performing equivalent work at the same location. The Tribunal discussed with him how he had worked out the market rate. When asked who had prepared the Market Salary Rate report, Mr Wong indicated that he had asked someone to help him with that. He indicated that someone else wrote the report. The Tribunal asked Mr Wong whether he had advertised the position at a lower rate. He indicated that he had done so before he was aware of the market rate. If he was not successful he would increase the rate. The Tribunal referred to the advertisement in Queensland Asian Business Weekly in June 2013. It asked whether that was an advertisement for this position. Mr Wong indicated that the advertisement had been put in by Cheng Yan Pty Ltd.

19.When asked about his role in the business, Mr Wong stated that it was mainly communicating with customers and marketing as well and talking to suppliers. The Tribunal noted that he had four employees. It asked who was responsible for the rostering and the payroll and things like that. Mr Wong indicated that he was responsible for that. When asked who was responsible for training the staff, he stated that basically the staff were all experienced staff. He indicated that he did the recruitment himself. Mr Wong indicated that he had been running the business for more than two years.

20.The Tribunal put to Mr Wong that it seemed that he and his wife were directors of the company that owned the business. It put to him that it seemed that they were running a retail butchery in Fortitude Valley and doing some wholesale to restaurants as well. Mr Wong confirmed this. The Tribunal put to him that it seemed that he managed the business and was responsible for basic management tasks such as recruitment, rostering and payroll. Mr Wong confirmed this. He confirmed that the company had nominated him.

21.The Tribunal put to Mr Wong that an issue it might need to consider was whether the position associated with the nominated occupation was genuine. It put to him that the nominated occupation was Sales and Marketing Manager. It asked Mr Wong to explain the role of the position and why he thought that was genuine. Mr Wong said the responsibilities were quite broad. When he first got here he did not only focus on Australia but on exports. He stated that there was no problem with hiring someone locally. The one problem with hiring a local was that if they were talking to someone in Hong Kong or China they would not know the language. Networking in China was quite important to do business. The Tribunal put to Mr Wong that it did not seem clear what the role and responsibilities of the position were. Mr Wong stated that it was about the network. In Australia not a lot of people ate the organs of animals. In Asia, like Hong Kong and China, the market for those organs was quite big. He stated that the networks they had in Hong Kong and China were quite important. He had worked in Hong Kong and China before. He had previously been involved in trading business and was quite aware of Chinese import processes. The Tribunal asked whether the business was currently exporting to China or other places in Asia. Mr Wong stated that he was planning on doing that but because of his visa entry and exit was quite problematic. Because of that he could not do a lot of things that he needed to do. The Tribunal asked what the company had done in terms of investigating the possibility of exporting to Asia. Mr Wong stated that he used to work with meats. He contacted some meat distributors there. The Tribunal asked Mr Wong whether he had done anything else in terms of investigating the export market to Asia. Mr Wong stated that he had done a bit of investigative work into that in terms of the meat market in Asia. He said there were quite a lot of exports of beef and pork but not a lot of exports of organs. He said he had looked into the local butchers. A lot of organs were thrown out instead of being used. There was quite a big market in Asia and a shortage of supply.

22.The Tribunal put to Mr Wong that what he had told the Tribunal might seem quite general. It might have some concern about whether there was an intention to expand into exporting into Asia or to expand the business in this way. Mr Wong stated that before coming to Australia he had been doing some investigation in China. Two years ago in China the market rate for one tonne of beef organs had been RMB 17,000. In Australia all beef organs were practically worthless. Local butchers did not really process those organs. Mr Wong stated that he could talk to them and tell them they would send someone in to process them for them. He said that it was his understanding that processing beef organs manually did not really cover costs so they did not really process the beef organs.

23.The Tribunal asked whether the position that Cheng Yan needed had been advertised. Mr Wong replied in the affirmative. The Tribunal noted that Mr Wong had given the Labour Market Test report which indicated that there had been advertising in three websites. The Tribunal asked whether the position that was required had been advertised in those three places. Mr Wong stated that he would have to look at it. He said he had asked someone to do the recruiting. The Tribunal asked whether he had asked them to recruit for this position the company needed. Mr Wong replied in the affirmative. He said that they had been involved in the entire process. The Tribunal asked whether there was anything else Mr Wong wished to tell the Tribunal about what the position involved. It noted that it had asked him about the role and the responsibilities, and he had talked about matters such as people eating organs of animals. It asked what the actual responsibilities of the position were. Mr Wong stated that they would have to go to the abattoir to check and accept the stock. When asked whether there was anything else, he said they would have to fly everywhere, to Asia. He confirmed that this was for the wholesaling of the organs.

24.The Tribunal put to Mr Wong that it might be concerned that what he had told the Tribunal about the position and what was in the genuine position report might seem quite different to what was in the job advertisements and to what was in the nomination application. It put to him that, if the position was described differently in different places, this might make the Tribunal wonder whether the position was genuine. Mr Wong stated that it was genuine. The Tribunal noted that Mr Wong had said that it was a position associated with wholesaling animals’ organs to Asia. But when it was advertised, for instance, on Jobs Galore it stated “We are looking for a dynamic individual to fill the newly created position of Sales and Marketing for our client’s retail operations in Brisbane’s Fortitude Valley.” The advertisement referred to tasks such as overseeing of the shop’s operations including staff inventory and all advertising. It also included things like implementing sales strategies for new coffee bean products and promotions. The Tribunal put to Mr Wong that it seemed like he had advertised for a position for someone to manage the retail butchery business. Mr Wong referred to direct communication with customers and clients and said they would have all the plans in place and just let them contact those customers. When asked whether the butcher business sold coffee, Mr Wong replied in the negative. The Tribunal put to him that the other job advertisements seemed to refer to a retail business in Fortitude Valley. Mr Wong said that was just part of the responsibility. The Tribunal put to Mr Wong that the way the advertisements were framed might make the Tribunal wonder whether there was a genuine Sales and Marketing position and whether what he had told the Tribunal about the position being responsible for wholesaling animal organs in Asia was reliable. It put to him that it seemed that what was referred to in the advertisement might appear to be what he was already doing in terms of being the director of the company and managing the retail business. Mr Wong said he was being forced to do that. The Tribunal put to him that, even though that role might involve elements of sales and marketing because there was a retail business, it did not necessarily mean that it was a specialist Sales and Marketing Manager position. It put to him that it seemed to involve overseeing the shop’s overall operation, including such things as staff and inventory, rostering and payroll. These were not things that might necessarily be associated with a specialist Sales and Marketing Manager position. Mr Wong stated that as a manager of the company in charge of marketing they had to have a basic understanding of the operation of the company in order to do the job. They would not be able to fulfil the responsibilities if they were not familiar with that.

25.The Tribunal referred to the ANZSCO description of Sales and Marketing Manager. It referred to the activities described in ANZSCO. It noted that this came with the broader group of Advertising, Public Relations and Sales Managers. It referred to the tasks of that broader group as described in ANZSCO. The Tribunal put to Mr Wong that it might seem that the role he was currently undertaking and the role of managing the retail business might involve aspects of sales and marketing. It put to him that it also seemed to have a range of other tasks that might fall outside the role of Sales and Marketing Manager. It put to him that it might doubt that there was a genuine need for a specialist Sales and Marketing Manager position. Mr Wong stated that one of the requirements for that position was that they had to have an understanding of meats. The Tribunal put to Mr Wong that in the nomination application it said the responsibilities were to manage a butchery business and trade a butchery business successfully. It put to him that it would seem that was what he was doing as the director of the company and manager of the business. He said that just the one person could not do everything. He was thinking that two people could share the responsibilities. The Tribunal noted that the information in the application did not appear to refer to wholesaling to Asia. Mr Wong stated that he needed someone to look after here because he did not have any visas or documents. He could not do anything here in Australia. He had to do applications before he entered and exited Australia. It was quite time consuming.

26.The Tribunal put to Mr Wong that it might seem from the nomination and the job advertisements that the position was that of managing the butchery business. It questioned whether this was a genuine Sales and Marketing Manager position. It questioned whether there was a genuine need for the position or that he intended to expand into wholesaling in Asia. Mr Wong stated that they could only see if it had been done. The Tribunal put to Mr Wong that it might be concerned about whether there was a genuine position if that position was described differently in different parts of the information he had given. Mr Wong stated that it was not that difficult with the retail butchery. One of the problems associated with that was that people thought it was quite a stinky job and not a lot of people wanted to do that. He said it was like a cleaner who had to perform tasks in the toilet.

27.The Tribunal asked Mr Wong how he would perform the duties described in the contract if he was already managing the business. It asked how he would have the time to take on the specialist role of Sales and Marketing Manager. Mr Wong stated if his application was approved his wife could help out as well because his wife had been studying in Australia since her arrival. His son was also studying. He could go back to Asia. The Tribunal put to Mr Wong that it might need to think about whether what was in the contract and Genuine Position Description accurately represented the position. Mr Wong stated that it was quite hard to do anything without the visa. He stated that for two years the business had been running pretty smoothly now. Mr Wong indicated that his wife was attending English classes at church. The Tribunal questioned why he had advertised for someone to take on the retail operations if his wife was going to take on that role. Mr Wong stated that if he had enough people his wife did not have to be there. If he did not have enough people he had to have some family helping out.

28.When asked whether there was anything else he wished to say about whether the position associated with the nominated occupation was genuine, Mr Wong replied in the negative. He said he had told the truth.

29.The Tribunal put to Mr Wong that it might need to consider whether, even if he was planning to expand the business into Asia, that was a Sales and Marketing Manager position or whether it would just be an expansion of his role as the manager of the business. It put to him that the types of tasks that were described included things like reviewing and executing company documents. It put to him that that might just seem to be part of his role as manager of the business and director of the company.

30.The Tribunal referred to other requirements for the nomination including that there was no adverse information known about the applicant or a person associated with the applicant. Mr Wong indicated that he had complied with relevant obligations and with all relevant regulations.

31.The applicant’s representative also made oral submissions. He stated that he thought there were a few things that had either been incorrectly passed on or were an omission or were an overemphasis on one point as opposed to looking at the bigger picture. The Tribunal asked the representative what he meant when he referred to things being incorrectly passed on. The representative said he would focus in on what he thought was more important. He said he thought Mr Wong had been talking about what a manager would necessarily need to be doing running that business; not how many hours in a day he would be doing that. He said Mr Wong would be recounting what a manager would be doing in a retail operation but it was not necessarily anything he was directly involved with himself. The Tribunal sought to clarify what was incorrect. It asked the representative whether he meant that Mr Wong had been incorrect or imprecise in his characterisation of the duties. It was submitted that he had been precise in recounting how the business was run but that was not necessarily what he did on a day-to-day basis.

32.It was submitted that there could be an appearance that Mr Wong was a retail manager. However, his business was more or less self managed. All of the staff had been with him since he purchased the business. Mr Wong said that one of them had worked there for more than 15 years. The representative stated that they had an intimate knowledge of the way the business ran. They taught Mr Wong about the business. Some of the management functions associated with running a retail operation like managing the staff, rostering and recruitment Mr Wong had never had to do. The Tribunal noted that the representative appeared to be giving evidence on behalf of Mr Wong. It noted that Mr Wong had given evidence about these things and he had told the Tribunal he did undertake tasks such as rostering and recruitment. The representative stated that Mr Wong had never recruited anyone. The Tribunal put to the representative that it appeared that what he was seeking to do was give evidence on behalf of Mr Wong and that the Tribunal had taken evidence from Mr Wong about these things. The representative stated that the applicant had not recruited anyone. The representative stated that there could be a misunderstanding that this was what a retail manager would do and putting himself in that position but Mr Wong had never had to recruit anyone. His staff knew exactly what they needed to do. The Tribunal noted that the representative appeared to be giving evidence about what Mr Wong did. It noted that Mr Wong was in a position to give evidence about what he did and that the Tribunal had spoken to him about that. The representative said he knew Mr Wong’s situation very clearly. He felt it had not been adequately emphasised from Mr Wong’s point of view.

33.The representative suggested that the Tribunal ask Mr Wong how many hours a day he spent in the shop as opposed to out on the road meeting suppliers, meeting with buyers or meeting with restaurant owners. It was submitted that there were a lot of these activities that took up the bulk of his day every day. When asked to respond on this, Mr Wong stated that usually it was securing stock. It was the most important thing of the butchery. So there were a lot of suppliers. He had to source quality stock. When asked how long that would take him to do, he said it would depend. There was no time limit. He confirmed that he spent a considerable amount of time visiting suppliers and sourcing stock. The Tribunal put to Mr Wong that that might be the case. It put to him that that might be part of the role of owning and managing the business. It questioned whether that was part of the role of a specialist Sales and Marketing Manager. Mr Wong stated that he had to have a deep understanding of different sorts of meat. The Tribunal asked Mr Wong whether there was anything else he wanted to say about that. Mr Wong stated that he had gone back to Hong Kong in December 2013. He stated that he was in the process of a visa application that allowed him to leave Australia and go back to Hong Kong and come back. On that trip, he went to Hong Kong, Guangzhou and Shanghai. He was in contact with some old contacts. They were quite interested in the organ idea. He said that progress had been delayed by the visa issue. He said that if he wanted to leave Australia he would have to do an application. That was quite time consuming. There was an obstacle to extending his business.

34.The representative said the amount of time Mr Wong spent in business development activities ought to have a higher weight by the amount of time he spent doing it and in terms of how critical it was to the business and his role as Sales and Marketing Manager. He stated that, in his negotiations and contacts with abattoirs as suppliers, Mr Wong was also performing a sales and marketing role because he had identified an opportunity with offal offcuts and blood products for sale in China and Hong Kong. He said they could organise evidence of communication with abattoirs and the nature of communication in pursuit of those opportunities. He also asked that Mr Wong be permitted to submit a daily diary. The Tribunal put to Mr Wong that, as someone who owned and managed a butchery business, his role was manager of the business, even if there were some plans to expand the business. It might seem that his role was not that of a specialist Sales and Marketing Manager.

1. The representative also made submissions in relation to r.2.27(10)(c). The representative submitted that there was a difference between the present state and the future state. The present state was that Mr Wong was involved in meat sourcing for his long-term goals and the future development goals of his business. It was submitted that, for Mr Wong to have a local presence, was very important for securing a market in Hong Kong. It was submitted that there were many competitors who wanted to sell into that market. The ability to secure supply was very important to success. To develop relationships with abattoirs was very important to what Mr Wong had to achieve. It was submitted that he was hoping to get in early. Offal offcuts and blood by-products were not very popular in Australia. It was widely used in cuisine in China. The Tribunal asked Mr Wong whether he had a predominantly Chinese clientele in Australia. Mr Wong stated that there were people from everywhere. There were customers from Thailand, Japan, Korea and some locals including Chinese. The Tribunal noted that, according to the nomination, most of the business clients were Chinese restaurants or cafes. Mr Wong stated that that was when he first started the business but they had quite different customers now. At this point an issue was raised in relation to the interpretation. It was submitted that when the interpreter interpreted some of the Chinese he mentioned the café as the coffee shop establishment but it was actually another type of establishment. The Tribunal noted that this did not appear to be of any great significance. (The Tribunal has considered what was raised about the interpreting. It does not consider that the matter raised in any way identifies errors in interpreting which are material to the conclusions of the Tribunal adverse to the applicant. Nor is the Tribunal satisfied on the material before it that the interpretation at the hearing fell short of an adequate standard.)

   36.The representative referred to the advertising. He stated that there was a misunderstanding. The representative stated that he would say that the advertisements that were placed were for marketing manager as a whole. Mr Wong was not able to proof the ad because he did not have sufficient English. He delegated that work to someone who worked in the newspaper who said they could put it into English for him. The representative said that was possibly the result of what had happened with the whole debate around the labour market testing regime. He said that labour market testing was largely discredited. The Tribunal noted that this appeared to go to the genuineness of the position. It was submitted that it was unfortunate the way it got put on that. It was submitted that the sponsor wanted to employ Mr Wong but unfortunately it had to be in a position to advertise that. The representative referred to a 457 integrity review. He said that it had been found that many employers had been forced to advertise a position when they already had the person they wanted. He said it was a problem when the wording of this was subcontracted out to the newspaper placing the ad. Somebody tended to fill in the gaps. It was submitted that it threw doubt on the whole ad. The Tribunal noted that there were three advertisements and that it might have difficulty accepting that they were so much at odds with what was intended. It noted that the advertisements did not appear to refer to expanding into Asia or advise people that they would be required to travel. It was submitted that in many cases labour market testing was more of a distraction than assisting the applicant. It was submitted that the gold mine of opportunity for the sponsor was to source a supply of offal offcuts and blood products for export to Hong Kong. It was unfortunate that the company had to be in a position to advertise as a criterion for making an application for a 457. Especially in light of the fact that it would be hard to find someone with his knowledge, personal networks, understanding of the import/export market in Hong Kong and understanding of the supplier market in Australia.

   37.The Tribunal asked why, if the position was about expanding into Asia and exporting to Asia, that was not reflected in either the nomination application or the advertising. The representative stated that it was because at the time of application there was a belief that any statements made in the application at the time would be sufficient to get a visa granted. But in November 2013 Mr Wong had already taken a trip over to Hong Kong in pursuit of this opportunity. What was being seen was the development of his business plan and business idea, and development of the opportunity to the point it was now. This was an opportunity Mr Wong wanted to develop in respect of the future. Without supplier relationships in Australia it was very difficult to develop the export market. The Tribunal noted that it might be very difficult to run the retail and wholesale operations in Australia without supplier relationships. It was submitted that those employees had been with the business long before Mr Wong took it over. They knew what they had to do. This freed Mr Wong up to secure more buyers and develop relationships with suppliers for the export market to Hong Kong. It was submitted that it was a present state / future state evolution. What was at time of application had developed further. But at time of application he could not quite clearly articulate the vision as it had become. The Tribunal put to Mr Wong that, particularly having regard to what was in the application, it might question how genuine the stated intention to expand into Asia was. The representative offered to provide evidence of communications with abattoirs. The Tribunal noted that the job advertisements and nomination application might appear to give a different impression in terms of what was envisaged in terms of the position. The Tribunal gave the applicant until close of business on 17 February 2015 to provide any additional material.

   38.The documentation provided at the hearing included the following:

   ·    A Labour Market Test Report, prepared by Pauline Borch of “Career of the Day” and dated 29 January 2015. The report noted that the Sales and Marketing Manager position had been advertised in several sources “in order to be fulfilled by a suitable local candidate” but that the company’s recruitment efforts could not attract an applicant who was a permanent resident or a citizen of Australia. The report provided an overview of domestic recruitment efforts by the sponsor. This included reference to online advertising in January 2015 and word of mouth from December 2014 to January 2015. The report noted that the position had been advertised during January 2015 using Gumtree, Career of the Day and Jobs Galore. It was reported that efforts had been made to clearly show that the role was located in Fortitude Valley, Brisbane such that local candidates would be enticed to apply for the role. An advertisement in Career of the Day commenced, “We are looking for a dynamic individual to fill the newly created position of Sales & Marketing Manager for our client’s retail operations in Brisbane’s Fortitude Valley”. The advertisements in Gumtree and Jobsgalore also referred to the newly created role of Sales and Marketing Manager for the client’s retail operations in Fortitude Valley. The accountabilities described in the Jobsgalore advertisement included implementing sales strategies for new coffee bean products and promotions; and overseeing of shops operations, including staff inventory and all advertising. The report’s conclusions noted that a Cantonese and Mandarin speaking background was preferred for the role and that the position required overseas travel to China.

   ·    A copy of the Contract of Employment between the sponsor and Mr Wong. This contract, dated 6 January 2014, stated that the employer had a new business of exporting cattle organs to food wholesalers and restaurants in Hong Kong and China. It set out various responsibilities and duties, including setting up a sales and marketing strategy to promote the sponsor company’s business in Hong Kong and China, liaising with various parties in relation to importing products to China and Hong Kong, and assisting the employer’s business in Hong Kong and China on a day to day basis.  It also referred to representing the company and reviewing, approving and executing company documents on behalf of the company in Hong Kong and China.

   ·    A job advertisement in a publication dated 21 June 2013.

   ·    A “Statement relating to the position of Sales and Marketing Manager”. This stated that the applicant company had been involved in a retail butchery business and had an intention to expand its business by commencing an export business of wholesale cattle internal organs. Reference was made to the company access and connection to the supply of cattle internal organs. The document stated that an additional position of Sales and Marketing Manager was required for this expansion. The position was required to provide timely advice and service to the company in relation to developing markets in Hong Kong and China, and to promote and develop the business of the company in Hong Kong and China. The document set out the attributes required for the position. It stated that Mr Wong had been found suitable for the position.

   ·    A Genuine Position and Market Salary Rate Report, dated 28 January 2015. This included information concerning the business and the company structure.  It described the nominated position, including the responsibilities and duties of the position. It stated that the business wished to expand into exporting cattle organs to Hong Kong and China. The responsibilities and duties are consistent with those set out in the employment contract. The document referred to the skill level required and the terms and conditions of employment. Under the heading “Genuine Position” the document contains similar information to that set out in the “Statement relating to the position of sales and marketing manager”. The document sets out information in relation to Market Salary Rates.

   39.The representative made a further submission dated 17 February 2015. It was submitted that Mr Wong was the director of a meat wholesale and retail operation. The Tribunal was provided with a business plan. It was submitted that it was of note that the internal structure of the retail business retained human resources sufficient to maintain the retail business in Mr Wong’s absence. He was not required to maintain responsibility for retail management. Mr Wong would devote more of his time to business development activities surrounding his desire to exploit an export opportunity in selling offcuts and offal to Hong Kong and southern China. Reference was made to “translations of letters from key contacts in this market that Mr Wong has had contact with in recent times”. Reference was also made to “excerpts of a diary that I had instructed Mr Wong to keep in order to document his daily activities”. It was submitted that this showed the vast array of activities involved business development and customer liaison. It was submitted that Mr Wong’s extensive travels and attendance at business dinners was also a series of activities oriented towards expanding his customer base within Australia and cementing contacts for overseas expansion. Reference was also made to a letter from Collins Wholesale Meats.

   40.The Tribunal was provided with additional documentation, including the following:

   ·    A document entitled “Business Plan Cheung Yan Pty Ltd Australian Meat Industry 2014”. This referred to plans to expand the business and stated that an additional position of Sales and Marketing Manager was required for this expansion. Included in the list of the company’s’ services was “Export specialised products to Hong Kong and China”. The document also stated, “We expect to hire a Sales Marketing Manager to utilise existing networks to expand the operation overseas into Hong Kong and China”. Under the heading “Marketing Strategy”, the document stated, “Utilise an experienced Sales Marketing Manager to further grow new and existing business connections to sell its unique products to overseas markets”.

   ·    A document which purports to be a diary for a period from 4 February 2015 to 10 February 2015. For the first day, the diary refers, for instance, to receiving goods from a supplier, calling suppliers, calling customers, arranging staff for delivery, preparing invoices, “call various suppliers/customers for new business and discuss various issues” and two business dinners. The diary also contains entries for such matters as receiving delivery from suppliers, examining and inspecting goods, calling suppliers and customers, arranging staff for delivery, making orders, online banking payments, preparing accounts and taxation records, and preparing invoices for delivery . It refers to some calls to companies overseas, including in Hong Kong and China. Reference is made to a number of business meetings. Reference is also made to such matters as “Discussion of offal export issues and matters” and “Call Collins and discuss the offal export matter/issues”.

   ·    A letter dated 6 February 2015 from Collins Whole Sale Meats Pty Ltd referring to previous correspondence and a “previous meeting”.

   ·    Letters from Smart Trading Company and Food Head Office of Suizhou City referring to Mr Wong’s previous visit to Hong Kong. The letter from the Food Head Office also refers to recent contact by phone.

   Position must be genuine

   41.Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

1. The Tribunal finds that the nominated position is Sales and Marketing Manager. The applicant company, of which Mr Wong and his wife are the directors, has sought approval of a nomination relating to Mr Wong.

2. The Tribunal has had regard to the ANZSCO description of the duties of a Sales and Marketing Manager. The ANZSCO description of Sales and Marketing Manager includes the following: “Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.” This occupation comes within Unit Group 1311 Advertising, Public Relations and Sales Managers, for which tasks include the following:

   •directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty

   •directing the development and implementation of strategies to promote an organisation's goods and services to as many people as possible

   •directing the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'

   •directing the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

3. The Tribunal has made reference to ANZSCO as a guide only.

   45.The Tribunal has considered all of the evidence about this issue. It considers that the evidence is problematic. There is a lack of a clear and consistent picture of the nature of the claimed position associated with the nominated occupation.

   46.As the Tribunal has put to Mr Wong, the material does not maintain a consistent description of the nature of the position which it is claimed is genuine.

4. The details of the position as set out in the nomination application indicated that the responsibilities of the position would be to manage a butchery business and trade a butchery business successfully. Duties included purchasing stock from various meat suppliers, selling to the general public at a retail outlet, selling meat to various restaurants in bulk purchase, keeping and preparing records as required and maintaining food hygiene as required.

5. The description of the position provided in the nomination application itself is quite different from the description of the position in the contract submitted to the Tribunal and in other materials provided to the Tribunal such as the statement relating to the position and the Genuine Position and Market Salary Rate Report. The contract stated, for instance, that the employer had a new business of exporting cattle organs to food wholesalers and restaurants in Hong Kong and China. It set out various responsibilities and duties, including setting up a sales and marketing strategy to promote the applicant company’s business in Hong Kong and China, liaising with various parties in relation to importing products to China and Hong Kong, and assisting the employer’s business in Hong Kong and China on a day to day basis.  It also referred, for instance, to representing the company and reviewing, approving and executing company documents on behalf of the company in Hong Kong and China.

6. The “Statement relating to the position of Sales and Marketing Manager” stated that the applicant company had been involved in a retail butchery business and had an intention to expand its business by commencing an export business of cattle internal organs. Reference was made to the company access and connection to the supply of cattle internal organs. The document stated that an additional position of Sales and Marketing Manager was required for this expansion. The position was required to provide timely advice and service to the company in relation to developing markets in Hong Kong and China, and to promote and develop the business of the company in Hong Kong and China. The document set out the attributes required for the position. It stated that Mr Wong had been found suitable for the position. Similar information appears in the Genuine Position and Market Salary Rate Report which has apparently been prepared for the purposes of the nomination application.

7. At the hearing, it was submitted that, at the time of application, there was a belief that any statements made in the application at the time would be sufficient to get a visa granted, but in November 2013 Mr Wong had already taken a trip over to Hong Kong in pursuit of this opportunity. Reference was made to the development of the business plan and business idea. The Tribunal has had regard to the submissions. Nevertheless, the Tribunal considers that it is of some significance that the description of the position in the application is so different to the description that has been proffered subsequently, including in the employment contract purportedly signed on 6 January 2014. The Tribunal is conscious that a business can change and evolve over time. It has had regard to the claims in this regard. Nevertheless, it is of some concern to the Tribunal that the position described in the nomination application is so different from the position that has been described, for instance, in the contract.

8. Further, it was not only in the nomination application that the description of the position differed from the description in the contract and in material such as the Genuine Position and Market Salary Rate Report. It has been claimed that the relevant position was advertised. As evidence of labour market testing, the Tribunal has been provided with a Labour Market Test report. This contains evidence of the position having been advertised on three websites in January 2015. As noted above, the advertisement in Career of the Day commenced, “We are looking for a dynamic individual to fill the newly created position of Sales & Marketing Manager for our client’s retail operations in Brisbane’s Fortitude Valley”. The advertisements in Gumtree and Jobsgalore also referred to the newly created role of Sales and Marketing Manager for the client’s retail operations in Fortitude Valley. The accountabilities described in the Jobsgalore advertisement included implementing sales strategies for new coffee bean products and promotions; and overseeing of shops operations, including staff inventory and all advertising. The Tribunal notes that there is also reference to matters such as sourcing new business opportunities. Nevertheless, the advertisements reflect a position related to a retail operation and do little to reflect a position related to pursuing opportunities to export offal and related products to Asia. The Tribunal notes that the Labour Market Test Report, which was clearly produced for the purposes of the present application, refers to overseas travel. However, this does not appear to be reflected in the advertisements for the position.

9. The Tribunal notes that the material submitted at the hearing contains a copy of what purports to be an advertisement in the Queensland Asian Business Weekly on 21 June 2013. This refers to a “Brisbane international trading firm” having a position of Sales and Marketing Manager. It does not identify the firm and directs that inquiries be made to a Mr Chen. It refers to a salary of 65000 – 90000. It indicates that the place of employment is Brisbane although it notes that overseas travel is required. It contains little detail about the nature of the position. The Tribunal attaches little weight to this as evidence that the position associated with the nominated occupation is genuine. As discussed above, advertisements placed in January 2015 reflect a position related to a retail operation.

10. The Tribunal has had regard to the submissions that have been made about the information in the advertisements and the Labour Market Test Report. It notes the representative’s submissions about the relevance and utility of labour market testing. Nevertheless, regardless of the views of the representative or others about labour market testing, the fact remains that the Tribunal has been provided with material that purports to relate to the relevant position. The Tribunal has also considered the submissions to the effect that Mr Wong does not speak English and left it to others to conduct the advertising. The Tribunal does not find this explanation at all convincing. Even if Mr Wong’s English skills are limited, this would not preclude him from instructing another party as to the correct nature of the position to be advertised. The Tribunal does not accept that someone else simply “filled in the gaps” when advertising the position on behalf of Mr Wong. The Tribunal does not accept that there is any satisfactory explanation as to why the information in the advertisements is so much at odds with the description of the relevant position in material such as the contract and the Genuine Position and Market Salary Rate Report. It has been claimed that Mr Wong’s business and his plans and ideas developed over time. However, the nature of the development of the plans and ideas does not appear to be reflected in the job advertisements placed in January 2015. There is simply no satisfactory explanation as to why, if there is a genuine position related to the plans to expand into Asia as claimed, this is not more clearly reflected in the job advertisements. Instead, the advertisement are very much related to a retail operation. This would appear to be more akin to the description in the nomination application than the description in material such as the contract and the Genuine Position and Market Salary Rate Report.

11. The material contains inconsistent and conflicting information as to the true nature of the position associated with the nominated occupation. This casts great doubt on the genuineness of the position.

12. The Tribunal has considered the evidence about the applicant company’s plan to expand the business through exporting offal and organs. While the Genuine Position and Market Salary Rate Report and other material suggest that a Sales and Marketing Manager is required to assist in developing a business in Hong Kong and China, this does not appear to be reflected in either the nomination application or the job advertisements in the Labour Market Test Report. There are other aspects of the evidence about this that are far from convincing. Mr Wong’s own evidence at hearing about what the claimed position entailed was quite general and lacking in detail. For instance, he referred to broad responsibilities. He referred in general terms to exports. He referred, also in quite general terms, to talking to people in Hong Kong and China and to networking. The evidence about the role and responsibilities of the position was quite limited. When the Tribunal sought further clarification as to the role and responsibilities of the position, Mr Wong referred again to the network and to matters such as the market for animal organs, his previous experience and his visa problems. When asked what the company had done to investigate the possibility of exporting to Asia, Mr Wong stated that he used to work with meats and referred in general terms to contacting some meat contractors there. He referred to having done a bit of investigative work. He later referred, again in quite general terms, to checking and accepting stock, and flying to Asia.

13. The Tribunal has been provided with submissions to the effect that Mr Wong had been pursuing this opportunity since at least November 2013 when it is said that he went to Hong Kong. However, his evidence about the roles and responsibilities of the claimed position was remarkably lacking in detail. Similarly, he appeared to be able to describe in only the most general terms the work the company had done to investigate the possibility of exporting to Asia. The Tribunal notes that somewhat more detail is provided in the documentation. Nevertheless, it is surprising that, if the company has been developing this idea or opportunity, the director would be able to provide such limited information about the investigations and about the position. The Tribunal is conscious also that it is not claimed that the idea or opportunity has been fully realised. Nevertheless, it is claimed that there has been some development of this business plan and idea.

14. The Tribunal has considered the other documentation that has been produced. This includes a Business Plan for “Cheung Yan Pty Ltd Australian Meat Industry”. It has the date 2014 on the front page. This material was provided to the Tribunal after the hearing. It is not readily apparent when, by whom or for what purpose this was produced. While “2014” appears on the front of the plan, the report contains a range of statistical information relating to the month of December 2014. This suggests that the plan was produced after the end of December 2014. The relevance of the year stated on the front of the Business Plan is not clear. The Plan contains statements such as, “We expect to hire a Sales Marketing Manager [sic] to utilise existing networks to expand the operation overseas into Hong Kong and China”. Under the heading “Marketing Strategy”, it states, “Utilise an experienced Sales Marketing Manager to further grow new and existing business connections to sell its unique products to overseas markets.”  The document also states, “We realise it would take an extra staff professional to grow the business…” The Business Plan, which refers repeatedly to the need for a Sales and Marketing Manager, is otherwise quite vague. This is consistent with the nature of Mr Wong’s evidence at the hearing which was very general in nature and did little to reflect that he had been pursuing such a plan.

15. The other material relating to the company’s claimed investigation of the business opportunity is quite limited. The Tribunal has been provided with a letter, dated 6 February 2015, purportedly from a representative of Collins Wholesale Meats (also referred to in the letter as Collins Whole Sale Meats). This refers to “previous correspondence” and a “previous meeting” but provides no detail about when these occurred. There is no further documentation relating to dealings with this or any other potential source in Australia. It may be that Mr Wong has had contact with a meat wholesaler in Australia in relation to the potential to export offal. However, particularly given that this is an opportunity that it is claimed the company has been pursuing since at least November 2013, there is overall very limited evidence of steps taken in Australia in relation to this business opportunity. The Tribunal has also had regard to the letters from Smart Trading Company and Food Head Office of Suizhou City. The Tribunal is willing to accept that Mr Wong had discussions with two companies in China / Hong Kong in 2013. It may be that Mr Wong had further contact with Food Head Office closer to the time of the hearing.

16. The Tribunal notes the diary that purports to record Mr Wong’s activity for the period from 4 February 2015 to 10 February 2015. It gives this little weight. The diary contains very limited detail. While it refers, for instance, to “Call various suppliers/customers for new business and discuss various issues”, it does not identify the suppliers, the customers or the issues. It refers to a telephone call, apparently of an hour, to Smart Trading Co. in Hong Kong but provides no detail as to why Mr Wong would have needed to speak to this company for an hour or in relation to what issues. Reference is also made to a two-hour telephone call to clients in China to discuss offal export issues and a call to Collins to discuss offal export matter / issues. It is not at all clear what issues related to offal export Mr Wong would have been discussing with these various parties during the week. As set out above, at hearing Mr Wong was able to provide only very limited information as to the investigations he had undertaken. The other documentary evidence is limited and does not appear to reflect such regular engagement with issues to do with offal export. The diary was apparently prepared by Mr Wong himself after the Tribunal hearing. The Tribunal gives it little weight.

17. It may be that Mr Wong has given some thought to a potential business idea and has had some discussions and meetings about this. However, the evidence about this idea and its development is overall quite limited in nature. Mr Wong’s evidence about the investigations he had made was quite vague and general, as was his evidence about the duties and responsibilities for the position. The information in the Business Plan is similarly quite vague. As discussed above, although material such as the Genuine Position report asserts that there is a genuine position associated with the claimed plan to develop markets in Hong Kong and China, this does not sit at all comfortably with the nature of the position described in the job advertisements submitted with the Labour Market Test Report. The Tribunal has had regard to all the evidence, including the three letters produced after the hearing. However, it is not satisfied on the evidence before it that there is a genuine position of Sales and Marketing Manager of the type set out in material such as the contract, the Genuine Position report and the “Statement relating to the position of Sales and Marketing Manager”. While it is effectively claimed that there is a genuine Sales and Marketing Manager position associated with the claimed plan to expand into export to Asia, the Tribunal does not accept on the evidence before it that this is the case.

18. The evidence indicates that Mr Wong is the owner and one of the directors of the applicant company. Although Mr Wong initially painted the company’s retail activities as limited, he acknowledged that the company operates a retail outlet in Fortitude Valley, Brisbane. The information in the nomination application included reference to managing a butchery business and purchasing stocks from various meat suppliers to sell at a retail outlet. Mr Wong indicated that the company is also engaged in some wholesaling, for instance to restaurants. The information in the nomination application also includes reference to selling meat to various restaurants in bulk. The duties referred to in the nomination application also include keeping and preparing records and maintaining food hygiene.

19. The Tribunal accepts that Mr Wong is involved in the running of the business which involves both retailing and wholesaling meat and that he would wish to continue to be involved in the business. The Tribunal accepts that he is involved in purchasing meat as he also described at the hearing, and that he has contact with customers and suppliers. It accepts that he seeks to source quality stock. Mr Wong confirmed at the hearing that he spent a considerable amount of time visiting suppliers and sourcing stock. The Tribunal accepts that this is an important part of the business that Mr Wong owns and runs. However, it does not accept that this is consistent with a claimed position associated with the occupation of Sales and Marketing Manager. While the representative sought to dispute this, Mr Wong’s own evidence was that he is involved in aspects of the day-to-day operation of the retail business such as recruitment, rostering and payroll. While the representative sought to give evidence about these matters, the Tribunal considers that Mr Wong himself was well placed to give evidence about his own role. His evidence indicates that he does have some role in the operations of the retail butcher business. The Tribunal accepts that he is also heavily involved in sourcing meat in particular.

20. The Tribunal accepts that the description of the relevant position in the nomination application does provide an accurate reflection of Mr Wong’s role in the business as an owner and a person involved in running the business. It accepts that this role may involve elements of sales and elements of marketing.  It accepts that Mr Wong has some contact with both customers and suppliers. However, the Tribunal does not accept that this role or the position as described in the nomination application is consistent with a specialist Sales and Marketing Manager position.

1. The Tribunal has considered all the evidence. The applicant company, of which Mr Wong is a director, seeks to nominate Mr Wong and identifies the relevant occupation as Sales and Marketing Manager. The Tribunal accepts that Mr Wong, as an owner and director of a relatively small business, has a role in the running of the business. However, it does not accept that this role or the description in the nomination application is consistent with a genuine Sales and Marketing Manager position. As discussed above, the material contains inconsistent and conflicting information as to the true nature of the position associated with the nominated occupation. This undermines the claims about a genuine position associated with the nominated occupation. The Tribunal has had regard to all the material, including the claimed plans to expand the business. It may be that Mr Wong has given some thought to a potential business idea and has had some discussions and meetings about this. However, while it is effectively claimed that there is a genuine Sales and Marketing Manager position associated with the claimed plan to expand into export to Asia, for reasons given above the Tribunal does not accept on the evidence before it that this is the case. Having carefully considered all the evidence, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. It follows that the requirements of r.2.72(10)(f) are not met.

   65.For the reasons given above, the Tribunal is not satisfied that the applicant meets all the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

   DECISION

   66.The Tribunal affirms the decision not to approve the nomination.

   Don Smyth
   Senior Member

   
   

   ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   2.72      Criteria for approval of nomination — Subclass 457…

   (1)This regulation applies to a person who is:

   (a)a standard business sponsor; or

   (b)a party to a work agreement (other than a Minister);

   who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

   (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

   (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

   (4)The Minister is satisfied that the person is:

   (a)a standard business sponsor; or

   (b)a party to a work agreement (other than a Minister).

   (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

   (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

   (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

   (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

   (7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.

   (7A)In addition to subregulation (6):

   (a)if:

   (i)      the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

   (ii)     the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

   the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

   (b)if:

   (i)      the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

   (ii)     the person has listed on the nomination a person described in paragraph (6) (a); and

   (iii)    the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

   the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

   (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

   (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

   (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

   (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

   (d)the location or locations at which the nominated occupation is to be carried out.

   (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

   (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

   (b)if:

   (i)      there is no 6-digit ANZSCO code for the nominated occupation; and

   (ii)     the person is a standard business sponsor;

   the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

   (c)if:

   (i)      there is no 6-digit ANZSCO code for the nominated occupation; and

   (ii)     the person is a party to a work agreement;

   the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

   (d)the location or locations at which the nominated occupation is to be carried out.

   (9)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.

   Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).

   (10)If the person is a standard business sponsor — the Minister is satisfied that:

   (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

   (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and

   (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

   (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:

   (i)      are provided; or

   (ii)     would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

   (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

   (i)      are provided; or

   (ii)     would be provided;

   to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

   (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

   (i)      the tasks of the position include a significant majority of the tasks of:

   (A)the nominated occupation listed in the ASCO; or

   (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

   (ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

   (A)the nominated occupation is a position in the business of the standard business sponsor; or

   (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

   (iii)    if the person lawfully operates a business in Australia:

   (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

   (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

   (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

   (A)for the occupation in the ASCO; or

   (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

   (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

   (i)      the tasks of the position include a significant majority of the tasks of:

   (A)the nominated occupation listed in the ANZSCO; or

   (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

   (ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

   (A)the nominated occupation is a position in the business of the standard business sponsor; or

   (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (iii)    if the person lawfully operates a business in Australia:

   (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

   (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

   (A)for the occupation in the ANZSCO; or

   (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

   (f)the position associated with the nominated occupation is genuine; and

   (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

   (i)      the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

   (ii)     if:

   (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

   (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

   the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

   (iii)    the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

   (iv)     unless subparagraph (ii) applies—the holder:

   (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

   (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

   (h)either:

   (i)      the person will:

   (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

   (B)give a copy of that contract to the Minister; or

   (ii)     the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

   (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

   (a)the terms and conditions of employment; and

   (b)the base rate of pay, under the terms and conditions of employment;

   that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

   (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

   (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

   (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

   (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

   (c)the Minister considers it reasonable to do so.

   (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

   (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

   (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

   (i)      the tasks of the position include a significant majority of the tasks of:

   (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

   (B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

   (ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

   (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

   (i)      the tasks of the position include a significant majority of the tasks of:

   (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

   (B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

   (ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

   (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.