1419629 (Migration)

1419629 (Migration) [2015] AATA 3178 (21 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  R & L Company Pty Ltd
CASE NUMBER:  1419629
DIBP REFERENCE(S):  BCC2014/2746199
MEMBER:Denise Connolly
DATE:21 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 21 July 2015 at 8:59am

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 13 November 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 17 October 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 that the position associated with the nominated occupation of Customer Service Manager was genuine.
Mr Sewinder Singh appeared before the Tribunal, on behalf of the applicant, on 22 May 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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).
The applicant’s evidence
The applicant operates a car wash business which currently has three sites, one in Sydney at Top Ryde and two in Melbourne at Northland. These are franchise businesses of Star Car Wash.
The applicant nominated the occupation of Customer Service Manager (149212). The Tribunal has had regard to the information provided to the Department in support of the nomination, which included an organisational chart indicating it operated from three sites, and written submissions about the business’ operations and the duties and responsibilities of the position. The organisational chart indicates there are two employees at the Sydney site and six employees at the two Melbourne sites. The nomination application indicates the nominee will be employed in Melbourne.
The Department sought further evidence from the applicant in relation to the issue of whether the position associated with the nominated occupation is genuine. On 12 October 2014 the applicant provided a written submission making the following assertions. The business operates car wash franchises for Star Car Wash at Ryde and in Melbourne. The facilities provide car wash, parking and valet services. The business is planning to expand in 2015. To facilitate its growth the business needs a Customer Service Manager, required to plan, develop, implement and review customer services and after sales services for each of the franchises and to maintain sound customer relations on a long-term basis. To maintain customer relations the business needs to implement effective customer protocols and procedures, which will be reviewed and updated. It is asserted the business needs a Customer Service Manager to manage the development and review of policies, programs and procedures to maintain positive customer relations and the quality of services provided by each of the franchises. Without this position, the business will be unable to ensure that services are relevant to its customers. The Customer Service Manager will provide customers with product information, develop and implement operational systems and programs, undertake professional staff development and training programs, develop marketing policies, resolve customer enquiries and develop standard procedures and policies to improve services.
The applicant advised that another employee, Bhupinder Singh, was nominated in the position of Customer Service Manager in an earlier nomination application made in January 2013, which was successful. However, that nominee’s visa application was refused and was under review by the then Migration Review Tribunal (differently constituted). The nominee, Mr Priteshkumar Udeshi, the subject of this nomination application, was nominated previously by the business for the position of Program Administrator. As the business urgently needed a Customer Service Manager it lodged another nomination application, nominating Mr Udeshi. The applicant advised that the business has closed its Gladesville Star Car Wash franchise and intends on opening new franchises in Melbourne. Since the closure of the Gladesville Star Car Wash franchise, the business has been restructured and there is now greater emphasis on addressing customer service needs. The applicant provided information about the nominee’s skills, experience and knowledge, the duties he undertook as a Program Administrator for the business and the duties and responsibilities of the Customer Service Manager in the business. The applicant asserts the Customer Service Manager will broaden the customer base for each franchise by addressing new marketing opportunities and developing policies to effectively engage and retain customers. After sales services, policies and customer retention services are also needed. It is asserted that many duties of the Customer Service Manager involve management of programs and, given the nominee’s knowledge of the business, the applicant is confident the nominee will continue to contribute as he has excellent customer skills.
The applicant provided various itineraries for travel between Sydney and Melbourne undertaken by the nominee.
The applicant provided to the Tribunal a copy of the delegate’s decision record. The delegate was not satisfied the operations of the business are sufficiently diverse or large in terms of turnover of staff so as to require a full-time Customer Service Manager for at least four years. He formed the view that the services to be provided were relatively simple. Having considered the ANZSCO definitions for Customer Service Manager and Retail Manager, he was not satisfied the position would require the nominee to undertake the duties of a Customer Service Manager. The delegate noted that the applicant’s prior nomination application for a Customer Service Manager was approved on 31 May 2013 and that the applicant had advised that the nominee in the first nomination application, Bhupinder Singh, could not work for the company as his visa had been refused. The delegate noted that the applicant has asserted that because of an urgent need for a Customer Service Manager it made another nomination application. The delegate noted that Departmental records indicate that there were no work restrictions on Bhupinder Singh’s visa, and that he was permitted to work for the business on a full-time basis. The delegate also noted that Bhupinder Singh was listed on the company’s website as a Customer Service Assistant. He did not accept that the business would move that nominee to a subordinate position without any indication of poor performance. He questioned why the applicant had said that the nominee, Bhupinder Singh, could not work in Australia, when in fact he could. He was not satisfied that the position associated with the nominated occupation is genuine.
When inviting the applicant to the hearing the Tribunal requested that the applicant provide the following documents:
a.copies of the business's financial reports, including a profit and loss statement and balance sheets, for the 2013/2014 financial year;
b.copies of all Business Activity Statements lodged with the Australian Taxation Office by the business in the last 4 quarters;
c.copies of all Pay As You Go payment summaries provided by the business to all employees for the 2013/2014 financial year;
d.copies of complete bank statements for all bank accounts operated by the business for the period 1 January 2014 to 31 March 2015;
e.a current organisational chart for the business;
f.any additional documentary information the applicant would like the Tribunal to consider in assessing whether it meets the requirements of r.2.72 with respect to the nomination occupation of Customer Service Manager.
On 19 May 2015 the applicant provided to the Tribunal the business’ profit and loss statement and balance sheet, BAS statements, the 2014 company tax return, PAYG statements, bank statements, an organisational chart, and emails relating to a franchise opportunity in Melbourne. The Tribunal has considered all of this material and takes it into account.
The representative also provided a written submission which states in summary as follows. The business has expanded since the application was made, in terms of numbers of cars being washed. The business is also providing services to corporate customers, including Brad Garlick Ford and Ringwood City Car Dealing. He sets out the number of cars washed for the corporate clients. The applicant is negotiating another franchise in Victoria and considering entering into a joint venture with Snap Carwash in Brisbane. The applicant is planning to offer a mobile car wash service, which has been trialled. It is asserted the skills of a Customer Service Manager are required to expand the scope of operations. The representative asserts that the business is expanding and needs a full-time Customer Service Manager to continue that expansion. He states that the existing franchises are inefficient as there is no full-time Customer Service Manager. This led to the closure of the Gladesville car wash as there was no full-time Customer Service Manager to respond to customer complaints, develop long term customer relations policies and implement effective after-sales customer services. The representative states that Mr Bhupinder Singh had been nominated but his visa application was refused because he did not meet Schedule 3 criteria. His matter is currently with the Federal Circuit Court and his prospects of success are low. He has indicated he will return to India in the next 3 months. He asserts the business will then need a full-time Customer Service Manager. The position is needed to liaise with corporate clients ensuring their needs are met. Without the Customer Service Manager the business will suffer losses and lose customers and contracts. The position is required to undertake various tasks similar to those described in ANZSCO for the occupation. The current nominee has been with the business since 2012 and has experience as the Customer Service Manager. He has been working only part-time in the position and this led to the closure of the Gladesville franchise as there were a large number of unsatisfied customers on the days he was unavailable. However he also asserts that, since the nominee has joined the business, sales have increased.
The organisational chart indicates the nominee is currently in the position of Customer Service Manager. The previous nominee Bhupinder Singh is in the position of Production Manager.
Hearing on 22 May 2015
The applicant was represented at the hearing by Mr Sewinder Singh (the applicant). The Tribunal explained that it needed to consider whether the requirements of r.2.72 are met. It explained that the Department refused the nomination because the delegate was not satisfied the business needs a Customer Service Manager. It noted that the issue with respect to r.2.72(10)(f) is whether the position required can be accurately described as a Customer Service Manager. It explained that in considering this issue the Tribunal will have regard to the ANZSCO definition for the occupation.
The Tribunal asked the applicant about the size and location of the business, its current outlets, number of staff and current client base. The applicant confirmed the business currently has one franchise in Sydney and two in Melbourne. A contractor provides the car washers who may change from day to day. The business employs a Production Manager in Sydney, Bhupinder Singh, whose role it is to plan the day, for example which car will be washed first, taking into account online bookings and drive-ins. The Production Manager coordinates the day’s schedule so that all cars are ready at pick-up time. This position is office based. The Tribunal noted, having regard to the organisational chart, that there is no Production Manager employed at the Melbourne franchises. The applicant indicated the nominee, who is currently in the Customer Service Manager position, stays in Melbourne. The Tribunal asked what he does in Melbourne. He said he explains the specials to the staff members in Melbourne, and how to perform their duties. He confirmed that the nominee undertakes the Production Manager’s tasks in Melbourne. He also maintains good relations with the loyalty customers (the return customers). He guides the staff regarding the plans for the day, checking how many cars are to the washed, the staffing, and he deals with complaints. The Tribunal asked the applicant if the nominee also washes cars when it is busy. He denied this and said that, when it is busy, the nominee will call him and he goes and helps with car washing. The Tribunal asked why the nominee does not help. He indicated he is only at the site part-time. Also he goes to the dealers to check if any cars need washing.
The Tribunal asked about the staff training and development the position will provide. The applicant said the position trains other staff in current promotional offers. For example, if a staff member does not know what to do for a particular price he explains it to them. For example the franchise might have a Star wash for $35 or a Platinum wash for $50. He will explain what is done for each of those options.
The Tribunal asked the applicant, the company director, about his role in the business. He indicated he is responsible for human resources, dealing with the franchisor and customer service. If the franchisor receives a complaint they call the applicant and he passes it on to the nominee. He is also responsible for the maintenance, hire and purchase of equipment, and the purchase of chemicals and cleaning materials. He may also deal with unsatisfied customers. He also meets and negotiates with the corporate customers, Ringwood Car Detailing and Brad Garlick. The car washing is done by subcontractors who are paid $16 per hour. If they detail the car they get 30% of the fee of $160. He deals with the contractor who provides the car washers, Ranjeev Singh.
The applicant confirmed that the nominee is currently in the nominated position, based in Melbourne, working 20 hours per week. He pays the nominee $27 per hour, cash in hand. The Tribunal asked why he only works part-time. The applicant said that if he is granted the visa he will employ the nominee on a full-time basis. When the Tribunal asked why the nominee was not working in the position full-time, he indicated he is currently doing the work himself. The Tribunal indicated that this may suggest he does not need a full-time position. The applicant said he wants the business to grow and will need the position to be full-time.
The Tribunal asked the applicant about the duties required of the position. He indicated that the position will look after cars coming from dealers. He will check if customers are satisfied, especially loyalty pack holders. The Tribunal asked how the position will do this. He indicated the nominee will call the customer after the job is finished and ask if they are happy. The position will also take complaints and deal with customers. He will also deal with staff and make sure they are working from the list of services. He said his contract with the franchisor requires him to achieve 97% customer satisfaction. The nominee deals with customers, in both Sydney and Melbourne, towards achieving that requirement. The Tribunal asked the applicant if the position will undertake any car washing. He indicated that if the nominee is onsite and it is really busy, he will help, but he normally is not onsite. The Tribunal asked where he would be if not onsite. He indicated that if a dealer complains, he goes and checks that the car was cleaned properly. He will do some car washing when they are busy and he also takes payments from customers. He asks customers if they are happy. He also discusses options with the customers. The Tribunal asked about his direct customer contact. He indicated that he will have contact with customers every day. He indicated the customers will know him personally.
The Tribunal noted that, in describing the position’s duties, the applicant had not mentioned duties mentioned in the written submissions, for example, that the position will develop and review policies. He indicated that he will meet with the Customer Service Manager to determine policies on how to increase sales. The Tribunal asked what kind of programs, as indicated in the written submissions, the position will work on. He indicated that the business sells loyalty programs. He provided to the Tribunal copies of the franchise’s Star Loyalty Pack which is produced by the franchisor. It contains various car washing options and specials. He confirmed that the franchisor puts together the various options and that he must follow their program.
The Tribunal asked about the position’s involvement in the induction of the staff, as claimed in the written submissions. He indicated that he tells the staff about the various promotions and what cleaning is to be done for each price.
The Tribunal referred to the ANZSCO definition for Customer Service Manager. It indicated to the applicant that it appeared the position would have significant direct customer contact and that his description of the position was not reflective of a Customer Service Manager’s duties. He indicated that it was important that the business maintain good relationships with the loyalty customers who are to be given good customer service and the position would provide this. He indicated that if he gets enquiries from customers, he forwards those to the nominee who deals directly with the customer. He indicated the business is growing and he wants to open more sites. This would be risky without a Customer Service Manager. He needs someone in the position to take the pressure off him. He asserted that the nominee is the only one who can perform these duties. Without the nominee, he will not achieve the 97% customer satisfaction required by the franchise agreement.
The Tribunal noted it may find the position appears to be that of a retail supervisor, rather than a Customer Service Manager. It noted that it appears to be more operational than managerial. The applicant repeated that he needs the nominee to look after the customers so he can grow the business. The position will plan what needs to be done for good customer service. The Tribunal asked how it will do this. The applicant stated that, for example, if the customer chooses the $35 car wash option and the dashboard is not shiny he will explain to the customer that this is not included in the price and that if they want the dashboard shined they would need to choose the Platinum service. Also if there is a complaint about a scratch on a car, the position will decide whether it is a consequence of the car wash.

At the end of the hearing the representative made submissions. He indicated that the nominee had a condition on his visa which prevented him from working full time. The Tribunal accepts this. He indicated that the position is necessary to implement the loyalty programs. With respect to the Tribunal’s concern that the role of the position is more operational than managerial, and primarily involved with dealing directly with customers, he indicated that the position also looks after the corporate clients. He indicated that the business anticipates that it will expand in the new future. It is in a position where it could purchase a carwash nearby. However it is first waiting to see if the nomination is approved.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The applicant nominated the occupation of Customer Service Manager (149212).
In assessing whether the position associated with the nominated occupation is genuine, that is whether the position nominated can be accurately described as a Customer Service Manager, the Tribunal has had regard to the indicative skill level and tasks for that occupation as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) – 1492. While the Tribunal is not bound by this description, it considers that a position of Customer Service Manager would involve the type and range of tasks at the skill level indicated in ANZSCO, which sets out the indicative skill level and tasks for a Customer Service Manager 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)
…
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

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
On the basis of the applicant’s oral evidence at the hearing the Tribunal is satisfied the business has three Star Car Wash franchise sites, one in Sydney and two in Melbourne, and that the position would be located in Melbourne. It accepts the business also provides services to Brad Garlick Ford and Ringwood Car Detailing. The Tribunal accepts the applicant’s evidence that the nominee is important to the ongoing success and operations of the business and that he genuinely fulfils a role within the business. It accepts that the applicant wishes to expand his business. However, as explained to the applicant at the hearing, the issue in this case is not whether the business genuinely needs an employee but whether the position can be genuinely described as the occupation nominated, that is, Customer Service Manager.
The Tribunal has had regard to the descriptions of the position’s duties, provided orally and in writing. It notes that the written descriptions tend to reflect the duties described in ANZSCO. However the applicant’s oral description of the position’s duties, provided at the hearing, indicates that the position is primarily involved in direct customer service, liaising with customers about the various car washing options available, and dealing with enquiries and complaints. The Tribunal also notes, on the basis of the applicant’s oral evidence, the staff training essentially consists of advising the staff on the different car washing options. The Tribunal also notes that when the business is particularly busy, the position may undertake some car washing. The Tribunal notes that the written descriptions indicate the position will develop and review policies, programs and procedures. However the applicant confirmed that the various programs are designed by the franchisor and the position is only involved in implementing those various options, such as the $35 Star wash and the $50 Platinum wash.
Having heard the applicant’s oral evidence about the position’s duties, and the nature of the business, the Tribunal considers the written descriptions provided to the Department and the Tribunal to be embellished. It has formed the view the applicant was given ample opportunity at the hearing to provide detailed evidence of the position’s duties. When it was put to the applicant that his oral description of the position’s duties did not include any mention of developing and reviewing policies, the applicant merely indicated that he would meet with the position to identify ways of increasing sales. Taking into account the size and nature of the business, the Tribunal is satisfied the applicant’s oral evidence on the position’s duties is reliable. The Tribunal is satisfied the position’s duties include coordinating the day’s schedule so that cars are ready at pick-up time, maintaining good relationships with the loyalty customers, taking payments, guiding the staff regarding the plans for the day, checking how many cars are to the washed and staffing, dealing with complaints and enquiries, going to the dealers to check if any cars need washing, and training staff in current promotional offers and the various car washing options.
The Tribunal is not satisfied that these duties are consistent with the types of tasks included in the ANZSCO definition for the occupation of Customer Service Manager. Although some of the position’s tasks involve maintaining good customer relations and ensuring customer satisfaction, in the context of the applicant’s car wash business, the Tribunal considers that they are carried out at a basic level and are tasks common to many customer service or supervisory positions in businesses that provide goods and services in a retail setting. The Tribunal acknowledges that the applicant wishes to expand his business and needs the nominee to ensure that customers are provided with the highest level of service. However, providing good customer service, supervising and training car wash staff, and ensuring quality services are not, in the Tribunal’s view, sufficient to classify the position as Customer Service Manager. The Tribunal considers this position to be operational rather than managerial.
The Tribunal considers that Customer Service Managers typically work in larger businesses where they focus on customer relations and standard of service issues, which involve planning, administering and reviewing customer services, after-sales services and maintaining sound customer relations. It considers the occupation to be managerial rather than operational. When this was discussed with the applicant at the hearing, he merely repeated that he needs the position to look after customers so that he can grow the business.
The Tribunal considers the tasks needed to be undertaken in this business to be more consistent with tasks included for a supervisory front line role, such as a retail supervisor. They do not, in the Tribunal’s view, demonstrate that the position involves developing, reviewing and implementing customer service policies, programs and procedures at the level described in the ANZSCO.
The Tribunal has taken into account all of the written material and the oral evidence at the hearing. It takes into account the representative’s submissions at hearing. Having carefully considered all of the evidence before it, and having regard to the ANZSCO description of occupation, the nature and size of the business and actual tasks of the position, the Tribunal is not satisfied that the position can be genuinely described as a Customer Service Manager.
Given the above, the Tribunal is not satisfied that the position associated with the nominated occupation of Customer Service Manager is genuine. For these reasons the Tribunal finds that requirements of r.2.72(10)(f) are not met.
Having found that r.2.72(10)(f) is not met the Tribunal did not consider it necessary to consider any of the requirements in r.2.72.
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.
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 3178

21 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction