1412897 (Migration)

1412897 (Migration) [2016] AATA 3946 (30 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  THE TRUSTEE FOR HORIZON FAMILY TRUST
CASE NUMBER:  1412897
DIBP REFERENCE(S):  BCC2014/1302466
MEMBER:Adrian Ho
DATE:30 May 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 30 May 2016 at 6:23pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 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 26 May 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) on the basis that the position was not genuine.
The director of the applicant company appeared before the Tribunal on 26 May 2016 to give evidence and present arguments.
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
At hearing the tribunal advised that Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
At hearing the parties were informed that the nomination application was refused by the delegate as not meeting this requirement and this was the major issue that should be addressed by the parties at hearing and that would be decided by the tribunal.
The tribunal observed to the parties that one of the matters which the applicant has certified, and is required to certify, is that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in ANZSCO[1] or specified in an instrument.
[1] Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1
It was suggested that the “position” refers to the job and its tasks in the nominating business; while the “nominated occupation” refers to the occupation as described through its indicated tasks in ANZSCO.
It was suggested 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 nominated occupation as indicated by ANZSCO.
It was pointed out that in relation to the analogously worded visa criterion in cl.457.223(4)(d)(ii) the Court had recently indicated[2] that the following questions may be relevant:
a.What is the occupation that has been nominated in relation to the applicant?
b.How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?
c.What are the tasks the applicant claims he or she has been employed or will be employed to perform?
d.Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO?
e.If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks he or she will be engaged to perform?
[2] Khan v MIBP [2016] FCCA 333
The ANZSCO entry for the nominated occupation of Customer Service Manager (CSM) is as follows:
UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS

CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years 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:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre

Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager

149211 CALL OR CONTACT CENTRE MANAGER

Organises and controls the operations of a call or contact centre. May work in a call centre.
Skill Level: 2

149212 CUSTOMER SERVICE MANAGER

Alternative Titles:
Client Service Manager
Service Manager

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
Skill Level: 2
The tribunal observed at hearing that the nominated occupation and its unit group exist within the Major Group of “Managers”:
MAJOR GROUP 1 MANAGERS

MANAGERS plan, organise, direct, control, coordinate and review the operations of government, commercial, agricultural, industrial, non-profit and other organisations, and departments.
Indicative Skill Level:
Most occupations in this major group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

In New Zealand:
Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

NZ Register Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
a.setting the overall direction and objectives of organisations and departments within organisations
b.formulating, administering and reviewing policy and legislation to ensure organisational and departmental objectives are met
c.directing and coordinating the allocation of assets and resources
d.directing, controlling and coordinating the activities of organisations and departments, either personally or through senior subordinate staff
e.monitoring and evaluating overall organisational and departmental performance, and adjusting policies, rules and regulations to ensure objectives are met
f.representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility
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 occupation indicated by ANZSCO, the indications given by ANZSCO were of relevance and importance in deciding if the position was genuine.
It was suggested that there are five ANZSCO-indicated tasks of a CSM (below), the other two tasks being related to another occupation: Call or Contact Centre Manager (ANZSCO 149211) in the same unit group:
a.developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided;
b.providing direction and feedback to team members and assisting with recruitment;
c.managing, motivating and developing staff providing customer services;
d.planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided;
e.liaising with other organisational units, service agents and customers to identify and respond to customer expectations.
The issue on review
The tribunal indicated at hearing that the main issue on review was whether the position associated with the nominated occupation is genuine.
In written submissions for the applicant company it is outlined that the company provides security services and security guards to a wide range of customers in Melbourne which started in 1999.
The company appeared at hearing in the person of its director, Mr Elsabrouty (the director).
The oral evidence of the director elucidated less-detailed evidence provided in written form.
At hearing the director gave evidence that:
a.The CSM position had existed for around 2 years and was filled by the visa applicant;
b.The business provides guards on site to one client, and patrol services to much larger range of clients where guards visit the client’s site periodically to provide a level of security and report on any incidents that are discovered;
c.The business also sells and installs security equipment to clients, which is around 30% of its turnover;
d.The business made around AUD 80000 in trading profit in 2014 and around AUD 38000 in 2015;
e.The director focuses on acquiring new clients and hands over newly acquired to existing clients to the CSM;
f.The CSM:
i.rosters around 10 guards on their daily and weekly shifts;
ii.deals with customer complaints and has some limited latitude to make offers to appease customers;
iii.attends on site when an incident is reported or suspected and investigates, for example, suspected break-ins to decide in part if the business did not perform its guard/patrol duties as agreed;
iv.visits or calls clients periodically to ask if they are being serviced as was agreed and whether they wish to alter or add services;
v.where services are altered, produces and distributes all documentation to record the new set of services being offered and communicates this to guards and to the director’s wife, who takes care of general administration;
vi.spends about 40% of the time calling or visiting clients to maintain a relationship with clients and 60% of the time handing complaints from clients;
vii.is not involved in recruitment.
g.In the future the business may:
i.Have the CSM attend a course to qualify as a security adviser who will then be able to advise on and sell security equipment; and
ii.Hire a sales representative who will report to the CSM.
At hearing the company director adopted for the position the set of duties in the contract of employment submitted and at folio 80 and as expanded at folio 140 and in the enumerated list in the written submission at folio 138.
The director was asked to expand on each of the duties listed at folio 140 (under the heading “The company performed the following duties on nearly day to day base”) with an emphasis on what the business required of each duty from a practical standpoint. He said his migration agent wrote the tasks after asking him what task the position would have, but some of them a related to the administration manager role.
He relevantly stated:
a.Duty 1: The CSM will take a brief to post a guard to control access to the premise by for example checking swipe cards of employees;
b.Duty 2: The CSM will investigate break-ins which were not detected on-site and assess damage and prepare a report which includes a statement from the guard on duty;
c.Duty 3: The CSM will submit reports to the client that guards/patrols have attended premises as agreed and to prove attendance by use of GPS records and to report on incidents of break-ins;
d.Duty 4: The CSM does not do this task, patrolmen do this task;
e.Duty 5: the CSM will follow up with new or existing clients about what is needed for new services negotiated with clients and can negotiate within limits on price to retain clients;
f.Duty 6: The CSM attends staff meetings;
g.Duty 7: The CSM will obtain feedback on performance and what can be improved during regular contact with clients;
h.Duty 8: The CSM will address client needs around alarms not performing as expected or arranging for technical staff to attend on-site;
i.Duty 9: The CSM will meet with clients to understand what happened in an incident and meet with staff to figure out who is at fault as sometimes the guards or the client may not give an accurate account;
j.Duty 10: The CSM will be accessible to all clients in terms of what they need or immediate adhoc solutions, the example given being that the CSM was able to deploy a guard on request within 2 hours.
The director was taken to the additional list of duties at folio 138 and stated that the CSM does these additional duties when the director is overseas (around 4 months in the last two years) and the CSM takes over general running of the business.
The director confirmed that there were no other duties of the position that were not captured at folios 80, 138 and 140.
The director was then taken through the five ANZSCO-indicated tasks of a CSM that the tribunal had suggested were relevant to the nominated occupation and invited to comment on whether the position took in that ANZSCO-indicated task.
developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided;
a.The director said the services provided to each client were altered from time to time but the CSM also had to refuse services which raised WorkCover and other issues; The director said the CSM would review the list of services for each client and makes changes which are negotiated with clients; The visa applicant also referred to alterations in the list of services for each client, done from time to time;
b.When asked whether there were any policies, programs and procedures concerning customer relations the director said there were OH&S compliance and reporting requirements, and site specifications for each client; the visa applicant said a client had once given new instructions and new policies and procedures about, for example, not disarming alarms in a particular way;
providing direction and feedback to team members and assisting with recruitment;
a.The director said the position did not take in this task ‘a lot’ but mentioned complains from clients and the visa applicant said he would convey new instructions to staff and amend the brief for that client;
managing, motivating and developing staff providing customer services;
a.The director said that he – the director – told staff not to be rude to clients on-site and the CSM would educate staff in this vein; the visa applicant said he would convey complaints to staff and instruct them on how to service the client properly; the visa applicant said he motivates staff by telling them that if they do well they could rise as he did; he said he manages staff for example when someone is sick he will arrange for a replacement;
planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided;
a.The director said after a sale the CSM had paperwork to do; the visa applicant gave an example of a client modifying instructions where he, the CSM, had to amend documentation accordingly;
liaising with other organisational units, service agents and customers to identify and respond to customer expectations.
a.The director said the CSM liaises with subcontractors and also is a subcontractor to other security companies and the CSM had to liaise with the head contractor to obtain instructions given by the client and to follow up on complaints channelled through the company which had the contract with the client.
It was suggested that it appeared that the position took in much of the operational aspects of the guard and patrol business whereby the incumbent in the position had primary carriage of the relationship with clients and also performed a wide range of ‘operational’ duties from rostering guards/patrolmen, to investigating break-ins, generating documentation around changes in services, and dealing with complaints.
It was suggested that:
a.A customer service manager, as conceived by ANZSCO and indicated by the ANZSCO-tasks, is not a person who delivers direct services to customers (such as Sales Workers in ANZSCO Major Group 6), does not manage a sales team (such as a retail supervisor ANZSCO Unit Group 6215), and is not a focal point for incoming and outgoing enquiries and complaints (such as a call or contact centre worker in ANZSCO Unit Group 5411 or an inquiry clerk in Unit Group 5412).
b.By reference to its description and tasks, ANZSCO contemplates that a customer service manager is the manager in the business whose business it is to gain insight into customer expectations and devise strategies for the business, and nurture staff, to meet those expectations. A major feature of the ANZSCO-indicated tasks involved working with, and setting policies and procedure for, staff providing customer service and after-sales service, particularly their recruitment, management, motivation and development, so that those staff, who have regular contact with customers, can meet customer expectations.
The parties were invited to comment.
The visa applicant said that he had to look after clients and give them the best service and to deal with incidents. The director said the CSM knew all the details about each client and could interact with them directly.
Representative
The representative stated he only represented the visa applicant and he submitted that the duties of operations and customer service overlap and the business supplied services and the CSM rectified issues with clients. He submitted the visa applicant is intimately familiar with each client and he had assisted the company to give better services to clients.
Findings
Based on the evidence of the director at hearing in conjunction with the written material provided, the tribunal finds that the position as it has been and will be discharged takes in a wide variety of tasks which do not fall with the ambit of the role of a CSM as conceived by ANZSCO. These tasks range from rostering guards/patrolmen, to investigating break-ins, generating documentation around changes in services, arranging for technicians to attend on site, to dealing with complaints. The position has direct carriage of the relationship with the bulk of the businesses clients and in servicing their needs. As a client-facing position, the tribunal can understand why customer service is important to the role. However, as suggested, the tribunal finds that the role is in essence the coordination of the core business activity of the business of arranging for, rostering, monitoring, and making alterations to the delivery of guard and patrol services to clients as well as the installation, maintenance and repair of equipment supplied to clients for which there is a contract of ongoing maintenance.

As suggested at hearing, the CSM is a manager whose principal role, as elucidated by the tasks indicated by ANZSCO, is to gain insight into customer expectations and devise strategies for the business, and nurture staff, to meet those expectations. That is a role which is not clearly illustrated by the evidence at hearing as part of the position and not evidenced in the oral evidence regarding the written tasks of the position in documentation.
The emphasis of the position is instead on the smooth running of the day to day operational challenges of the business, how and when resources are deployed and whether guards and patrolmen are performing their operational duties competently.
The tribunal acknowledges that the position does take in a customer service component because the incumbent deals with clients on a daily basis and has some responsibility for communicating client expectations to guards and patrolmen. However, this is a small portion of the overall tasks of the position which taken as a whole is equivalent or substantially equivalent, not to the occupation of CSM, but to that of a general manager or operations manager.
The tribunal also acknowledged at hearing that the position was very important to the business. It is genuine in that sense.
But as suggested, the tribunal is not satisfied it is equivalent or substantially equivalent to the occupation of CSM, and in this sense, the tribunal finds, the position associated with the nominated occupation is not genuine and r.2.72(10)(f) is not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the 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.
(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.

[2016] AATA 3946

30 May 2016

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