1412887 (Migration)

1412887 (Migration) [2015] AATA 3100 (10 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Jesse Aaron Meguideche
CASE NUMBER:  1412887
DIBP REFERENCE(S):  BCC2014/1411050
MEMBER:Denise Connolly
DATE:10 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.
Statement made on 10 July 2015 at 4:39pm

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 8 July 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 June 2014. 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) because the delegate was not satisfied the position associated with the nominated occupation is genuine.
The applicant appeared before the Tribunal on 23 March 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Evidence to the Department
When making the application for nomination approval, the applicant nominated the position of Customer Service Manager (ANZSCO 149212) and indicated the nominee would be employed in the applicant’s business, Le Petit Patisserie, 2D Campbell Parade Bondi.
The applicant provided various documents including an offer of employment, information about the market rates for Customer Service Managers, sample advertisements for Customer Service positions, and a job description indicating the position will involve the following duties:
a.directly supervise the work of pastries production staff, to include organising, prioritising, and scheduling work assignments.
b.Developing specific goals and plans to achieve sales targets through conversion and cross selling.
c.Entering and maintaining information in the management database and follow progress.
d.Ensure that business and client training processes are being implemented with every team member to ensure the right mix of performance.
e.Customer management-resolving problems by troubleshooting and investigating each case.
f.Analyse between daily log reports and sales figures.
g.Complete team daily activities to coach behaviours and track results, progress and performance.
h.Monitor, guide and train current and new staff in customer service care, products knowledge and guidance, and company’s policy.
i.Customer service follow-up of procedures and improvements moving forward.
j.Share your knowledge and conduct on-the-job training/instructional and development programs for staff members.
The applicant provided the following references:
a.Grandma Moses, Deli, Bakery and Supermarket indicating they make purchases of about $70,000 per year from the applicant. It indicates the nominee has a business relationship with the referee.
b.Quality Kosher Catering, Mariah College canteen indicating the nominee has been dealing with the referee and is the referral person for the business relationship. He collects, orders and arranges the deliveries and administrative documents. He also provides information about new products or deals. The referee makes purchases of about $2000 per week, from the applicant.
c.Romeo’s Supa IGA, St Ives certifying that the nominee works as the representative for the applicant and is the point of contact in the business relationship. The referee purchases products from the applicant every week. The nominee deals with the referee during the whole ordering/buying process.
d.The Central Synagogue verifying that the nominee has worked in the position and is the referral for the business relationship between the referee and the applicant. The referee makes purchases of about $500 per week, from the applicant and states the nominee’s knowledge and presentation of the sale of goods is outstanding.
The applicant provided a statement as to why he believes the position is genuine. He explained that his business is a wholesale bakery company. As a new business, he relies on strong sales and customer service strategies to achieve business goals and financial projections. The nominee is currently working in the position and has been managing the customer’s accounts and working to improve customer service practices with the goal to developing and maintaining customer satisfaction. The business needs the nominee’s skills to keep focusing on developing solid strategies for customer retention by improving customer service practices. As an accounting and customer services manager, the nominee will continue to contribute to the business’ growth. He indicated the position undertakes the duties referred to above, and also is responsible for customer relationships and client records, including casual clients, individuals and businesses.
The applicant provided a list of the various products that the business produces.
The applicant provided to the Tribunal a copy of the delegate’s decision record. The delegate was not satisfied that the duties of the position involved those of a Customer Service Manager, as described in ANZSCO. He formed the view that the position’s description predominantly involved serving customers. The reference letters provided indicate significant direct contact between the nominee and the customers. He formed the view that the nominee would spend the majority of his time performing tasks that are not listed in the ANZSCO description. He noted the job advertisements provided with the application were for Customer Service Officers, not customer service manager roles. He was not satisfied that the position associated with the nominated occupation is genuine. He found that r.2.72(10)(f) was not met.
Evidence to the Tribunal
When inviting the applicant to a hearing, the Tribunal requested that he provide evidence relating to the business and the position. The representative made a written submission and provided supporting documentation. In the submission she explains that the business operates as a wholesale Kosher certified patisserie and supplies a range of retail and other wholesale businesses with Kosher cakes, pastries and products. It does not operate a retail outlet specifically. However, given significant growth and increased amounts of the products, the business has recently commenced retail trade two days per week. Its focus is on its wholesale business. The business commenced operating in November 2013. It was approved as a standard business sponsor on 12 February 2014. The position of Customer Service Manager plays a pivotal role in ensuring the Kosher certification is maintained by devising and implementing policies and procedures relevant to ensure the quality and Kosher certification of suppliers and employee training in respect of Kosher work practices. The position deals exclusively with the Kashrut Authority and its monitoring of the business’ Kosher products, practices and environment. The role requires a Customer Service Manager who possesses experience in and knowledge of Kosher food preparation as well as business development, reporting, management and financial systems. The position is responsible for maintaining the Kosher certification standards, policy and training within the business. The position is the primary contact for all wholesale customers and continually maintains and monitors customer satisfaction, ensure liaison with businesses about the development of new products. The position maintains records and reports and develops and implements strategies to improve sales and service to customers. The business owner is the head pastry chef. He is focused on producing a range of high quality Kosher cakes and breads. He requires the position to assume responsibility for developing and maintaining customer relationships and sales strategies. The business has eight employees, including the owner and the nominee. There are two pastry chefs, two bakery hands, one bakery assistant, one receptionist and one cleaner. The position supervises and trains all employees in respect of the maintenance of Kosher certification.
The representative asserts that the business’ financial statements are evidence of its growth. The business owner attributes much of the growth to the role of the Customer Service Manager. In the first eight months of trading, sales were $174,212. The records indicate however that there was $390,880 in revenue in the business in first 14 months of trading. The submission lists the businesses customers, which include supermarkets, retail stores, synagogues and hotels. Due to its strong growth, the business is in the process of expanding to a second location. The owner is currently negotiating a commercial lease on premises located in Alexandria, where the bread will be produced.
The representative refers to the Department’s guidelines on ‘genuine position’. She notes that in reference to the occupation of Customer Service Manager it is indicated that the occupation would only apply to a small number of specialised catering businesses. She submits that this business is highly specialised in nature, as maintenance of Kosher certification is fundamental to its operations and the business’ ongoing growth over the past 14 months supports the view that the role is clearly relevant to the business’ activities and in-line with the regular true framework and policy on assessing ‘genuine position.’
The representative also provides documentation from Seek.com as evidence of a market rate for the position of between $54,000 and $65,000.
The representative provided the following documentation:
a.letter from the applicant’s accountant attesting to its profitability
b.bank statements for the period 1 January 2014 to 31 December 2014
c.electronic business activity statements for Fast Movers (the applicant’s old business name)
d.profit and loss statement for the business for the year ending 30 June 2014
e.PAYG payment summary statements for three employees
f.statutory declaration attested by the applicant on 17 March 2015 in which he asserts that he could not have established and grown his business without the nominee who has worked hard to develop a customer base. The nominee is the first point of contact with the wholesale customers and the maintenance of the business’ Kosher certification with the Authority. He also provides staff training in this regard. He has formalised the business’ internal procedures to maintain the Kosher certification requirements and ensure customer satisfaction. He has recently developed the retail aspect of the business. He monitors online and telephone orders.
g.Customer Service Manager job advertisements
h.evidence that the applicant is in the process of negotiating a lease on a commercial property in Alexandria to be used as a bakery.
Hearing on 23 March 2015
At the hearing the Tribunal discussed with the applicant the provisions of r.2.72. He addressed each of the requirements and gave some background to the business and the nominee’s employment.
The applicant explained that he used to work for a bakery, Glicks, with the nominee. He observed that the nominee had good organisational skills. He wanted to start his own business but does not have good business skills; his strengths are as a pastry chef. He previously started a business that did not work out because he could not deal with the paperwork and administration of the business. The nominee encouraged him to start a business and agreed to help him set it up. The bulk of the business is wholesale, opening to the public only about one day a week. Having the nominee work for the business frees the applicant to be a pastry chef. The nominee does all of the paperwork and deals with all of the customers because he has good interpersonal skills. The applicant does not like to deal directly with the customers. He does not have management skills.
The applicant explained that he is a wholesale provider to large retailers such as IGA and Coles. The nominee has developed the policies and procedures for dealing with customers of this calibre. He has developed the business’ website, advertising strategies and systems for dealing with orders and customer follow up. He deals with feedback from customers about new products. He deals directly with the wholesale customers whose needs are specialised. There are not many kosher pastry providers but if the business is not run well it would be fatal.
The applicant will pay the nominee $54,200 if a visa is granted. At the moment he is on a student visa and can only work 20 hours per week. The business is growing so the applicant needs the nominee to work more hours. The nominee’s salary will increase as the business grows.
The applicant also gave evidence about other requirements of r.2.72 which is discussed below.
The applicant’s representative made the following submissions. Being a Kosher bakery the business is specialised and must meet the requirements for Kosher certification. This is fundamental to its operations. The nominee understands these requirements and manages the business to maintain its certification. The business is growing so the nominee’s specialised knowledge and skills are important. The business is considering franchising. The nominee has been formalising the policies and procedures in preparation for this. The Kashrut Authority requires that the person in the management role understands the requirements to ensure the business is run in accordance with the Authority’s requirements.
At the hearing the Tribunal noted that the applicant’s approval as a standard business sponsor had expired. It agreed to give the applicant further time to apply for approval as a standard business sponsor.
On 17 June 2015 the representative provided evidence from the Department that the applicant has been approved as a standard business sponsor, from 17 June 2015 to 17 June 2020.
ASSESSMENT OF THE EVIDENCE
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The applicant is nominating the occupation of Customer Service Manager, ANZSCO 149212, which is an occupation under s.140GB(1)(b): r.2.73(1A)(a). The applicant has identified in the nomination Mr Igor Soares, an applicant for a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b). The nomination was made online using the approved form 1196 (internet) and the prescribed fee has been paid; r.2.73(2), (3), (5) & (9). The applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5). The nomination includes the location, Bondi NSW 2026, at which the occupation will be carried out, and the name and 6 digit ANZSCO code: r.2.73(4)/(4A).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Information before the Tribunal indicates that the applicant was approved as a standard business sponsor for a five year period commencing 17 June 2015. That sponsorship remains in force and the Tribunal is satisfied that the applicant, at the time of this decision, is a standard business sponsor.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
On the basis of information on the nomination application the Tribunal is satisfied that the applicant has identified Mr Igor Soares as the person to undertake the nominated occupation and that Mr Soares is a Subclass 457 visa applicant.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·the location(s) at which the nominated occupation is to be carried out.
On the basis of information provided in the application, the Tribunal is satisfied that the applicant provided the relevant 6 digit ANZSCO code and specified the location for the position at which the nominated occupation is to be carried out.
For these reasons the requirements of r.2.72 (8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57(2) and (3).
There is no evidence before the Tribunal to indicate that there is adverse information of the type described above known to the Department about either the applicant or an ‘associated person’.
Given the above, the Tribunal finds that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 14/048. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of Customer Service Manager and corresponding code 149212 appear on the relevant list in the relevant instrument. The instrument does not require the nomination to be supported in writing by a specified organisation.
For these reasons, the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028, which is currently $250,000: r.2.72(10)(AB).
The contract of employment, which sets out the terms and conditions of employment, indicates that the nominee’s annual salary will be $54,200 plus superannuation, 9.25% employer contribution ($5,013).
The evidence from the applicant indicates that he employs one Customer Service Manager and that the nominee currently occupies that position. As there is no Australian employee performing the same role as the nominee at the same location, the Tribunal has had regard to the methodology specified in IMMI 09/113 in assessing whether the applicant has determined the terms and conditions of employment that would otherwise be provided in accordance with the methodology set out in that instrument.
There is no evidence before the Tribunal to indicate that there is a fair work instrument, state industrial instrument or transitional instrument that would apply to an Australian performing the role of Customer Service Manager. The applicant can therefore rely on the inclusive examples of ‘relevant information’ listed in the instrument, such as remuneration surveys and job vacancy advertisements to determine what would be payable to an Australian performing an equivalent role.The Tribunal has considered various job vacancy advertisements from Seek.com for similar roles indicating salary packages of between $55,000 and $65,000.
The Tribunal has had regard to those job vacancy advertisements and the terms and conditions of employment, as set out in the employment contract, and is satisfied that the terms and conditions of employment for the nominee are no less favourable than those which would be provided to an Australian performing equivalent work in the same workplace.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028, which is currently $53,900.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
The nominee’s annual earnings will be at least $54,200. As this amount exceeds the TSMIT, which is currently specified as $53,900, the Tribunal is satisfied that the requirements of r.2.72(10)(cc) are met.
Requisite certification
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). The certification relates to the tasks of the position, the nominated occupation and the skills and qualifications of the visa holder, or proposed visa holder.
The applicant has made the relevant certifications in the nomination application, and on this basis the Tribunal is satisfied that the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The delegate formed the view the position associated with the nominated occupation was not genuine.
The Tribunal has had regard to the applicant’s evidence about the business’ requirements for the position. It considers the written and oral submissions made to the Tribunal to be persuasive. Based on the additional information provided, the Tribunal is of the view that the business’ needs are more complex than the delegate concluded. For the following reasons it accepts the position associated with the nominated occupation is genuine.
The Tribunal accepts that the business operates as a wholesale Kosher certified patisserie and supplies a range of retail and other wholesale businesses. It accepts that the position of Customer Service Manager plays a pivotal role in ensuring the Kosher certification is maintained by devising and implementing policies and procedures relevant to ensure the quality and Kosher certification of suppliers and employee training in respect of Kosher work practices. It accepts that the business requires a manager with experience and knowledge of Kosher food preparation as well as business development, reporting, management and financial systems. It accepts that the position maintains the Kosher certification standards, policy and training within the business, and that the position is the primary contact for all wholesale customers and continually maintains and monitors customer satisfaction, and liaising with customers about the development of new products. The position maintains records and reports and develops and implements strategies to improve sales and service to customers. It takes responsibility for developing and maintaining customer relationships and strategies. The business has eight employees, including the owner and the nominee. There are two pastry chefs, two bakery hands, one bakery assistant, one receptionist and one cleaner. The position supervises and trains all employees in respect of the maintenance of Kosher certification.
The Tribunal is satisfied based on the business’s financial statements that it is a growing business. Its customers include supermarkets, retail stores, synagogues and hotels. Due to its strong growth, the Tribunal accepts the business is in the process of expanding to a second location.
The Tribunal accepts the representative’s submissions that the business is highly specialised in nature, that maintenance of Kosher certification is fundamental to the business’ operations and the business’ ongoing growth over the past 14 months supports the view that the role of Customer Service Manager is clearly relevant to the business activities.
Overall having considered the position description provided in writing and at the hearing, the Tribunal is satisfied the position will develop and review policies and procedures concerning customer relations and goods and services provided and the maintenance of its Kosher certification, provide direction and feedback to employees, assist with recruitment, management and training staff, liaise and follow up on customer satisfaction.
Having regard to the tasks typically included in the occupation Customer Service Manager as described in the ANZSCO and the duties of the nominated position, particularly in the context of the nature and operations of the business, the Tribunal is satisfied that the tasks of the position are consistent with the occupation Customer Service Manager. The Tribunal is accordingly satisfied that the position associated with the nominated occupation of Customer Service Manager is genuine.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in an instrument. There is no current instrument for the purposes of this regulation.
A copy of an employment contract which set out the terms and conditions of employment was provided to the Department. The Tribunal is accordingly satisfied that the requirements of r.2.72(10)(h) are met.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
In this case, the nominated occupation is Customer Service Manager, ANZSCO 149212. This occupation is classified as Skill Level 2 in the ANZSCO dictionary. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In the circumstances, the skill and occupation exemption to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the requirement in s.140GBA.
For these reasons the requirements of s.140GBA are not applicable.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Denise Connolly
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 3100

10 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness