1410923 (Migration)

1410923 (Migration) [2015] AATA 3491 (16 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SMP Homes Pty Ltd
CASE NUMBER:  1410923
DIBP REFERENCE(S):  BCC2013/1610047
MEMBER:Adrian Ho
DATE:16 October 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 16 October 2015 at 2:41pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by vpa delegate of the Minister for Immigration on 29 May 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).
The applicant applied for approval on 8 October 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f).
The director of the applicant company, Mr Deol, (the director) appeared before the Tribunal on 13 October 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The parties were informed that a deliberation of this requirement requires a consideration of the need for the position in the business, and a comparison of the tasks and nature of the position and the tasks and nature of the occupation indicated by ANZSCO.
At hearing, the tribunal pointed out to the parties that as the nominator was required to certify that the tasks of the position contain a significant majority of the tasks of the nominated occupation indicated by ANZSCO, the indicated tasks given by ANZSCO were of critical relevance in deciding if the position was genuine.
It was also suggested that, if the nomination is approved and the visa granted, the sponsoring business had to be in a position to meet its obligation to ensure that the nominee does not work in any other occupation other than the occupation that was nominated, as required by r.2.86(2)(a).
It was suggested to the director that within the context of the Subclass 457 visa and nomination scheme, in deciding the genuineness requirement, the tribunal had to decide if the position is a genuine reflection of the nominated occupation of Sales and Marketing Manager (SMM) as contemplated by ANZSCO such that it included a significant majority of the ANZSCO-indicated tasks, and such that if the nominee were to commence in the position the nominee would not be working in an occupation other than the occupation that was nominated.
The ANZSCO entry[1] for the nominated occupation is as follows:
[1] GROUP 1311 ADVERTISING AND SALES MANAGERS

ADVERTISING AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
oformulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers
odirecting the development of initiatives for new products, marketing and advertising campaigns
oorganising and controlling sales activities by setting product mix, geographical sales areas and customer service standards
odirecting merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors
odirecting sales methods and arrangements by setting prices and credit arrangements

Occupations:
131111 Advertising and Public Relations Manager
131112 Sales and Marketing Manager

131111 ADVERTISING AND PUBLIC RELATIONS MANAGER

Plans, organises, directs, controls and coordinates the advertising and public relations activities within an organisation.
Skill Level: 1
Specialisations:
Community Relations Manager
Corporate Relations Manager
Public Affairs Manager
Relationship Manager

131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1
Specialisations:
Business Development Manager
Market Research Manager
Genuine reflection of the ANZSCO-indicated occupation
A discussion took place at hearing where the tribunal explored with the applicant’s director the position and its tasks, and the tasks as indicated by ANZSCO for SMM.
In that discussion, the director made the following points as relevant:
a.He was not satisfied with the material submitted to the Department; but is satisfied with the submission given to the tribunal which he perused at folio 52 of the tribunal file;
b.The business was started in 2009 and built residential houses under contract;
c.It does not buy or develop land;
d.For the 2014 tax year, and with reference to the organisational chart submitted, Ms Deol, the director’s wife, was paid as an administration clerk, and Ms Kaur was paid for painting and decorating on a 457 visa as painter and decorator;
e.Alwin and Attilio are subcontracted builders and Mansher and Narinder are building apprentices, all of them will supervise on building sites at time, along with the director himself;
f.The business had 10 houses being built at the moment;
g.30% of the business currently comes from corporate/business clients who acquire land and ask SMP to build;
h.70% of customers are members of the public who want a house built and many are from the Sikh and Indian community;
i.The business just signed a contract to build 20 houses in one complex, and so work from businesses will become a larger share of total income;
j.The director obtained business from the Indian community through word of mouth;
k.He also hired stalls at Indian gatherings to promote the business where he, his wife, and other employees would attend the stall;
l.In the past he has turned away work because there were too many projects starting at the same time and when that happens he cannot control his costs and his profit margin erodes;
m.That was when he had no qualified builder to help him; now Alwin, Mansher, Narinder and the director can handle 20 houses at the same time; Attilio will be hired for the big standalone project of 20 houses which is up-coming;
n.There is future potential business coming from the public but the business requires more promotion;
o.In the past promotion has included ads in community newspapers, stalls at events and carnivals;
p.A website is under construction;
q.For the future, the director would want his proposed sales and marketing manager:
i.to make plans of how to get customers;
ii.to target communities beyond the Indian community;
iii.to focus on the long term goal;
iv.to have a presence at more events like carnivals and events by the sales and marketing manager, supported by other staff;
v.to make use of the business’ Facebook page and other social media;
vi.to study the community with the goal of designing a model home which can be sold as a packaged product;
vii.to be present in a temporary office on-site at new land developments where retail customers buy land, so as to engage retail customers as a builder of houses;
viii.to approach real estate agents and conveyancers for leads to person who had bought land, and who might need a house built;
ix.to place advertisements in community papers such as Leader papers and Indian community papers;
x.to sell and close deals with customers and sign contracts and take deposits;
xi.to visit the site of each house to ensure that it complies with any verbal and other promises made to the customer before the construction project is signed off.
r.He envisaged the sales and marketing manager would spend:
i.20% of time on ‘office management’ which is to enter all of a customer’s house preferences into a computer, and then follow up with the customer to obtain the final design, after which the director will approve a final price and a contract is signed;
ii.80% of the time on the other marketing activities.
s.Other than the above, the director could not think of anything else he wished his sales and marketing manager to do, but noted that the nominee herself may have other marketing ideas that were worthy of consideration.
t.Each of the ANZSCO-indicated tasks of an SMM were put to the director and he was informed that the tribunal would assess whether he could articulate if and how that task might be discharged by his proposed SMM:
Formulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers
i.the director said his SMM will do this task, and policies ‘will be discussed’ along with budget;
ii.the only other ‘manager’ was himself, and policies could be discussed with him, along with the maximum spend;
iii.maximum prices and limits will also be set for negotiations with customers.
Directing the development of initiatives for new products, marketing and advertising campaigns
iv.the director said the SMM would research the market to find out what people wanted in a house;
v.the director would with the SMM then direct the development of a new housing product.
Organising and controlling sales activities by setting product mix, geographical sales areas and customer service standards
vi.the director said this was all about what the customers needed, and if the company had done work in a nearby area, customers would see that and have more confidence in the business.
Directing merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors
vii.the director said that this was organised at carnivals where give-away bags are offered to visitors and a handover kit is given to customers so they can refer the business to other people;
viii.he acknowledged that there were no salespersons in the business for the SMM to coordinate;
ix.he made no reference to agents or distributors.
Directing sales methods and arrangements by setting prices and credit arrangements
x.the director said that this happens when customers are given credit terms and pay later.
A discussion then took place in which the tribunal suggested that the tasks of the position as described by the director appeared to require the proposed SMM to spend much of her time in direct sales to customers, through stalls at carnivals and events, from an on-site office at the location of new land developments, and by sourcing leads from real estate agents and conveyancers, and then to close deals with customers and usher them through the process of a final house design and contract signing.
It was suggested that the tasks of the position appeared to be more in line with the tasks of a Sales Representative in ANZSCO Unit Group 6113, and the tasks below were read out for the director:
UNIT GROUP 6113 SALES REPRESENTATIVES

SALES REPRESENTATIVES represent companies to sell their goods and business services to wholesale and retail establishments.
ICT and Technical Sales Representatives are excluded from this unit group. ICT Sales Representatives are included in Unit Group 2252 ICT Sales Professionals. Technical Sales Representatives are included in Unit Group 2254 Technical Sales Representatives.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate II or III (ANZSCO Skill Level 4)

In New Zealand:
NZ Register Level 2 or 3 qualification (ANZSCO Skill Level 4)

At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
a.promoting and selling their company's goods and services such as building and plumbing supplies, business services, motor vehicle parts and accessories, and personal and household goods
b.acquiring and updating knowledge of employer's and competitors' goods and services, and market conditions
c.using directories and other sources to compile lists of prospective business clients
d.visiting clients and retail outlets to establish selling opportunities
e.quoting prices and credit terms, recording orders and arranging deliveries
f.following up clients and ensuring satisfaction with goods and services and resolving any problems
g.monitoring clients' changing needs and competitor activity and reporting on these developments to sales and marketing management
h.preparing sales reports
i.maintaining and submitting records of business expenses incurred
It was emphasised that these tasks also took in a market- and competitor-awareness component which partially covered the task of identifying what customers wanted in a house, and what other builders were offering in their housing packages.
It was emphasised that a sales representative had to report market developments to sales and marketing management – which it was suggested would normally be a SMM.
A discussed ensued where it was put to the director that the position appeared to be a composite of a sales representative and an SMM, but that the tasks requiring direct sales and the finding of leads for direct sales opportunities (both more applicable to a sales representative) appeared to be the bulk of what the position required.
The SMM reasonably explained that as a small business the company could not afford to hire both an SMM and sales representatives, and the one person had to discharge all of the sales and marketing functions and that in the future, if and when the business grew, a fully-fledged sales and marketing section with an SMM as manager could be put in place.
The tribunal expressed understanding but suggested that ultimately the tribunal had to decide the position was genuinely that of a SMM or not and that the nomination and visa scheme did not allow for a position that was not so to evolve into that of an SMM at some point in the future.
Findings
The director gave plain, transparent and frank evidence at hearing and the tribunal finds him to be a credible witness.
The transparency and plainness of that evidence allows the tribunal to find that the position requires discharge of the following types of tasks, as laid out above:
i.to make plans of how to get customers;
ii.to target communities beyond the Indian community;
iii.to focus on the long term goal;
iv.to have a presence at more events like carnivals and events by the sales and marketing manager, supported by other staff;
v.to make use of the business’ Facebook page and other social media;
vi.to study the community with the goal of designing a model home which can be sold as a packaged product;
vii.to be present in a temporary office on-site at new land developments where retail customers buy land, so as to engage retail customers as a builder of houses;
viii.to approach real estate agents and conveyancers for leads to person who had bought land, and who might need a house built;
ix.to place advertisements in community papers such as Leader papers and Indian community papers;
x.to sell and close deals with customers and sign contracts and take deposits;
xi.to visit the site of each house to ensure that it complies with any verbal and other promises made to the customer before the construction project is signed off;
xii.to enter all of a customer’s house preferences into a computer, and then follow up with the customer to obtain the final design, after which the director will approve a final price and a contract is signed.
With perseverance from the tribunal, the director was able to articulate the tasks laid out above which the tribunal readily accepts are appropriate to the business wishing to expand its customer base and sign more contracts to build houses.
For this reason, the tribunal prefers the director’s evidence at hearing as to the above tasks of the position over the generalised written statements such as those in submissions at folio 50 of the tribunal file where it is asserted without particularisation that the position takes in a majority of the tasks and duties indicated for an SMM. The director’s evidence at hearing allows a nuanced and contextual understanding of the how the tasks actually fit into the needs of the business; whereas the written material submitted does not allow such an appreciation.
The director’s comments as to each of the ANZSCO-indicated tasks of an SMM, noted above, are generally vague and unrelated to the task as indicated in ANZSCO. This does not affect his credibility as a witness, but rather underlines that he cannot convincingly articulate how the ANZSCO-indicated tasks of an SMM will be discharged in the position he has created.
The tribunal acknowledges that the director intends to discuss the tasks of the position with the incumbent, if the nomination is approved and the visa granted. That is, the director may not have a complete and final view as to the tasks of the position at present. Nonetheless, the director was informed at hearing that the tribunal had to be satisfied that the position took in a significant majority of the ANZSCO-indicated tasks and that it was a genuine reflection of the SMM occupation as illustrated in ANZSCO.
To this end the tribunal spent a consideration amount of time at hearing assisting the director to articulate the tasks of the position as he envisaged them, which had not been done in written submissions. His evidence ultimately led to the tasks of the position as laid out above.
As suggested at hearing, the tribunal considers that the position is essentially that of an ANZSCO sales representative in that the bulk of the tasks and the majority of the effort will be focus on direct sales and finding leads for direct sales, as well as understanding the market and what customers’ sought in a new home.

On the evidence, it is the director himself who will set policies and plans, direct the development of new housing products, and set prices and credit arrangements. On his evidence, he will be the person who will approve the build price in a contract before it is signed.
For these reasons, the tribunal is not satisfied that the position takes in a significant majority of the ANZSCO-indicated tasks of an SMM. Nor is the tribunal satisfied that the position is a genuine reflection of the occupation of SMM as conceived by ANZSCO. As a consequence, if the nominee were to commence in the position the applicant company would not be in a position to ensure that the nominee does not work in any other occupation other than the occupation that was nominated, as required by r.2.86(2)(a).
It is in this sense that the tribunal finds that the position associated with the nominated occupation of SMM is not genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
The tribunal notes that it is satisfied that the position is a genuine reflection of the occupation of sales representative as conceived by ANZSCO in Unit Group 6113, in particular, occupation “611399 Sales Representatives nec”. The tribunal is satisfied that the business genuinely requires a sales representative. However, that occupation is not the occupation that has been nominated, and is not one that is specified as applicable to the nomination scheme.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Adrian Ho
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.

[2015] AATA 3491

16 October 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction