1420004 (Migration)

1420004 (Migration) [2016] AATA 3576 (23 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Just Clean Pty Ltd
CASE NUMBER:  1420004
DIBP REFERENCE(S):  BCC2014/2721179
MEMBER:Steve Georgiadis
DATE:23 March 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.

Statement made on 23 March 2016 at 1:51pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by the delegate of the Minister for Immigration on 3 December 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 15 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 cl.2.72(10)(f) of the Regulations as the delegate considered the tasks of the position are not consistent with the tasks of the nominated occupation of Customer Service Manager listed in ANZSCO 149212. The delegate concluded there was not a genuine need for the position.
Sole Director for Just Clean Pty Ltd, Mr Pat Sepe, appeared on behalf of the applicant before the Tribunal on 3 September 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to 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 have been met: s.140GB(2). For nomination applications made from 23 November 2013 s.140GBA must also be satisfied.
The Tribunal has had regard to the material provided to the Department and also to the Tribunal including the various written submissions.
Regulation 2.72(1) applies to a person who is (a) a standard business sponsor (SBS); 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 (Temporary Work (Skilled)) visa.
The applicant is an approved standard business sponsor for subclass 457 visas. Its sponsorship application ID number is 1685570846. The applicant has nominated the position of Customer Service Manager ANZSCO 149212 and has identified a candidate to fulfil that nominated position within their organisation on a subclass 457 visa.
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 2.72(3) to (12) which are considered below.
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 Tribunal is satisfied that the applicant has made the nomination in accordance with the process set out in regulation 2.73. Specifically, the nomination was made on the internet using the approved form and with information mentioned in subregulation 2.72(5) and (8A). The applicant has paid the fees specified by the Minister.
The person, Just Clean Pty Ltd, a corporation is nominating an occupation of Customer Service Manager under s.140GB(1)(b): r.2.73(1A)(a) and has identified in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b). The Tribunal is satisfied, based on inspection of the Departmental file which confirms the above that the applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a).
The Tribunal accepts that the applicant has identified Mr Gambhir Pathak as the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5). The nomination application includes the location at which the occupation will be carried out in Kilburn (and other sites) in South Australia. The applicant’s written submissions (and attachments) under cover e-mail of 13 August 2015 set out that the position will be located at 1/146 North East Road, Walkerville SA 5081 and that, due to the nature of the role, the incumbent will need to travel extensively throughout South Australia in order to execute the tasks and responsibilities associated with the position. The Tribunal accepts from this that the locations at which the nominated occupation is to be carried out are in South Australia.
The Tribunal is satisfied that the relevant name and/or 6 digit ASCO/ANZSCO code for Customer Service Manager (ANZSCO 149212) has been provided in circumstances where the applicant is a standard business sponsor: 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.
The Tribunal is satisfied based on inspection of Departmental systems and the standard business sponsorship approval letter dated 23 September 2014 (for ID number 1685570846) that Just Clean Pty Ltd is approved as a standard business sponsor for the period 23 September 2014 to 23 September 2017.
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.
As aforementioned, the Tribunal is satisfied the applicant has done so based on inspection of the Department's file which has identified Mr Gambhir Pathak, the proposed applicant for a subclass 457 visa, to work in the nominated occupation of Customer Service Manager.
For this reason 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 current holder of a Subclass 457 (Temporary Work (Skilled)) visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply here, and in that sense are otherwise met.
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 - (here it is specified as Customer Service Manager ANZSCO 149212);
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 14/048; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement - (here not applicable, as an ANZSCO code is provided above); and
·the location(s) at which the nominated occupation is to be carried out - (at various sites in South Australia).
As above, all relevant matters are specified and 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 r.2.57(3).
During the course of the hearing, the applicant advised that Just Clean Pty Ltd had been the subject of a GST audit by the Australian Taxation Office (ATO) covering the period 1 July 2012 to 30 June 2013. This resulted in an additional activity statement liability for GST (excluding interest charges) of $104,272.00.
The Tribunal notes from the ATO’s letter of 29 May 2015 that the tax audit did not impose any administrative penalties or additional income tax liability. The letter also thanked the applicant “for your [the applicant’s] time and co-operation during this audit.” The Tribunal notes particularly that this matter relates to actions for the financial year ending June 2013 and there appears no evidence of any repeated instances.
The Tribunal is satisfied that in all the circumstances, it is reasonable therefore, to disregard this information, and makes no finding of adverse information regarding the applicant from this information.
Having accessed the Departmental systems available to the Tribunal, and in the absence of any (other) adverse information being brought to the attention of the Tribunal by the Department, the Tribunal is satisfied there is no (other) adverse information known to Immigration about the applicant or a person associated with the applicant.
For these reasons 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 15/091.
In this case, the nominated position and its corresponding 6 digit code (ANZSCO 149212) correspond to the occupation of Customer Service Manager and its 6-digit code specified by the Minister in the instrument.
For these reasons the requirements of r.2.72(10)(aa) are met.
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). In the present case the instrument does not require the nominated position to be supported by an organisation specified by the Minister in IMMI 15/091.
For these reasons the requirement of r.2.72(10)(b) is not applicable.
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. That amount is $53,900 per annum.
The written submissions of 13 August 2015 from the applicant’s registered migration agent are that by reference to market salary research (attachment 6), the proposed market salary will be in excess of $53,900 as the median of the salary range for a Customer Service Manager in Australia of an organisation comparable to the applicant’s is $59,495 (for persons with less than 20 years’ experience). The Tribunal also notes the signed employment contract of 10 October 2014 naming the nominee sets out an annual salary of $55,000.00 proposed.
The Tribunal accepts from this evidence and the oral evidence at the hearing that the base rate of pay that would otherwise be provided to an Australian citizen or permanent resident is for the comparable role is in the order of and not less than, $55,000 per annum, and that this amount is therefore, greater than TSMIT. The Tribunal is satisfied this amount is arrived at using the method required in r.2.72(10AA) and the applicable instrument.
For these reasons the requirements of r.2.72(10)(cc) are met.
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 this case, the Tribunal has had regard to the aforementioned contract for employment signed by all parties, dated 10 October 2014 provided by the applicant in the written submissions of 13 August 2015. The Tribunal has considered this information together with the market data above regarding the base rate of pay that would be provided to an Australian citizen or permanent resident. The signed contract for employment sets the salary at $55,000 plus mandated superannuation contributions (at the presently applicable rate) in accordance with the superannuation guarantee legislated requirements. The contract also sets out the other terms and conditions relating to the probationary period, duties, leave, termination, remuneration and performance review, hours of work, absences, company property (including vehicles), workplace health and safety, training, confidentiality and other matters mentioned. The applicant’s submissions of 13 August 2015 are that the nominee will be employed under an Individual Contract of Employment with terms and conditions pertaining to the Fair Work Act and the National Employment Standards and that these are the same terms and conditions applying to the applicant’s Australian and non-Australian employees.
The Tribunal accepts from the above that that the nominee's other terms and conditions of employment will be no less favourable than the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location.
For these reasons the requirements of r.2.72(10)(c) are met.
Requisite certification
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e) for the nomination here made on or after 1 July 2010. These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument.
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the applicable instrument.
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the applicable instrument.
·the qualifications and experience of the nominee are commensurate with those specified for the occupation (relevantly) in the ANZSCO.
The Tribunal notes the written certification in the nomination application in respect of these matters. Specifically, the applicant has certified as part of the nomination application that tasks of the nominated position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO 149212.
The applicant’s Job Description sent to the Tribunal under written submissions of 13 August 2015 for the role, is that the Customer Service Manager is responsible for establishing, maintaining and retaining a strong relationship and communications system with customers with a view of achieving a high level of customer retention by keeping customers satisfied with the services provided to them.
ANZSCO 149212 describes the role of a Customer Services Manager as one who plans, administers and reviews customer services and after-sales services, and maintains sound customer relations. The required skill level is ANZSCO Skill Level 2. Most occupations in this unit group have a level of skill commensurate with the qualifications and experience in Australia of AQF Associate Degree, Advanced Diploma or Diploma.
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.
The key tasks of the Nominated Position are stated in the applicant’s Job Description. From a consideration of these requirements, it appears that the tasks are generally commensurate with those set out in ANZSCO for a Customer Services Manager as follows:
a.developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
b.ensuring operational efficiency (such as within a call centre)
c.providing direction and feedback to team members and assisting with recruitment
d.managing, motivating and developing staff providing customer services
e.planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
f.liaising with other organisational units, service agents and customers to identify and respond to customer expectations
g.may work in a call centre (not applicable here).
The applicant has nominated Mr Gambhir Pathak as the nominee to fill the nominated position. The Academic Transcript from Tribhuvan University, Nepal provided in the written submissions above confirm that the nominee possesses a Bachelor Degree in Education and has significant experience of at least three years in a relevant customer service area.
The Tribunal accepts the applicant’s submission and oral evidence that although the nominee’s Bachelor Degree in Education has general application to the role of Customer Service Manager he has developed relevant customer service skills from working over three years as a teacher. The applicant told the Tribunal that these skills were identified from interviewing the nominee and putting various scenarios to him to respond to, and include being a pro-active problem solver, handling customer concerns / complaints appropriately, managing staff effectively, and relating well to customers.
The Tribunal is satisfied that the nominated occupation is a position in the applicant’s business and that the qualifications and experience of the nominee are commensurate with the qualifications and experience specified in the ANZSCO for the occupation of Customer Service Manager. The Tribunal is satisfied that the nominee meets the requisite ANZSCO requirements, and also meets the applicant’s stated requirements for the nominated position.
For these reasons 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 Tribunal has had regard to the written submissions of 13 August 2015 and the oral evidence that Just Clean Pty Ltd is a family business which has cleaning contracts with 104 clients and work in multiple sites dispersed throughout South Australia. The applicant’s business has its head office located in Adelaide. At the time of the submissions and oral evidence the business employed five key employees with management responsibilities. This includes the Customer Service Manager role for which the nominee has been nominated. The business also engages a further 90 operatives on contracts for service based work and has provided an Organisational Structure (chart) of the business structure in support of this. The organisational structure includes a Managing Director who provides strategic leadership for the business, the General Manager (Operations) who oversees the operational aspects of the business across all areas, a Marketing Manager responsible for business development activities of the business as well is Site Supervisors /Team Leaders.

The organisational structure also identifies two Customer Service Managers (including the nominee role) one of which is a part-time position. The nominated role of Customer Service Manager had been occupied temporarilly for approximately 8 months (at that time) by another occupant identified as Sangita Iteni until the process for the grant of the visa for the nominee is completed. The applicant’s evidence is that Mrs Iteni was offered the position but had declined continuing in the role for the longer term for personal reasons but was otherwise happy to continue until the position is filled in the longer term pending the outcome of this review.
The role of the area Customer Service Manager has been set out as one which requires meeting customers at their sites and building relationships with customers to ensure that work is being carried out to their satisfaction and to the quality standards of the applicant’s business. The role also is to resolve customer complaints and report to the General Manager with regard to any non-compliance with quality, policies and procedures based on customer feedback and/or personal assessment against the standards of the applicant’s business. The Customer Service Manager role also resolves customer complaints and makes systemic improvements at policy level in the delivery of services to customers. Further particulars of the role were set out in the aforementioned Job Description which the Tribunal has also considered.
The Tribunal has had regard to the ANZSCO classification in respect of the occupation of Customer Service Manager and accepts the description of the nature and function of the role and the tasks required of the role as set out above.
The applicant’s evidence and written submissions are that the business has experienced rapid growth and expansion in the recent year and further period. The Tribunal accepts from available financial records that there is evidence of growth in the number of clients as set out in the written submissions and also growth in revenue - noting that turnover for the last three financial years shows growth from $1.258 million in 2012/13; $1.566 million in 2013/14 and then $1.826 million in 2014/15. The applicant anticipates from completed Business Activity Statements (BAS) that turnover for the current financial year will be in the order of $2.5 million.
The applicant’s submissions and oral evidence at the hearing which the Tribunal accepts in the context above, is that with the evolution of the business it has become increasingly evident that the retention of customers is hinged on good customer service and that the appointment of a long-term Customer Service Manager in a full-time capacity has “now become a strategic necessity.” The Tribunal is persuaded by the evidence and submissions that the appointment of the nominee to a full-time Customer Service Manager position will create capacity for the business to grow further and allow it to provide ongoing satisfactory levels of service that would not be realised with only one part of area Customer Service Manager as present.
The Tribunal accepts for these reasons that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are satisfied.
Licence, registration or membership and other requirements
Mr Gambhir Pathak is not a holder of a subclass 457 (Temporary Work (Skilled)) visa. Therefore, subregulation 2.72 (10)(g) is not relevant to this application.
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 the relevant instrument. As mentioned above, the Tribunal has received and examined the written contract between the applicant and the nominee signed on 10 October 2014 and proceeds on the basis that having provided it to the Tribunal, it has also been provided to the Minister - satisfying the alternative in r.2.72(10)(h)(1)(B).
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
The applicant is not party to a work agreement and these provisions are therefore not applicable. In that sense, the Tribunal is satisfied the requirements are otherwise met.
The requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfill 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.
The applicant submits it is not required to meet the labour market testing requirements under section 140GBC as the nominated position of Customer Service Manager is a Skill Level 2 requiring AQF Diploma or higher qualification (and at least 3 years relevant experience) for an occupation exempted under IMMI 13/137.
The Tribunal accepts that in this case, an occupational exemption applies pursuant to section 140GBC and legislative instrument IMMI 13/137 because the nominated occupation falls within ANZSCO Skill level 1 or 2 and requires a level of skill commensurate with a AQF Diploma or higher qualification: and also satisfies s.140GBC(3)(a) of the Act.
The Tribunal accepts that the approved sponsor is therefore, exempted from the requirement to satisfy the labour market testing condition in section 140GB of the Act.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
CONCLUSION
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved, and the Tribunal therefore, approves the nomination.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Steve Georgiadis
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.

[2016] AATA 3576

23 March 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness