1503254 (Migration)

1503254 (Migration) [2016] AATA 4222 (4 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Storage Plus Group Pty Limited
CASE NUMBER:  1503254
DIBP REFERENCE(S):  BCC2014/2947010
MEMBER:Denise Connolly
DATE:4 August 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 04 August 2016 at 12:21pm

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 23 February 2015 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 5 November 2014 and nominated the occupation Customer Service Manager. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied the staffing, size and scale of the business requires another managerial position and a dedicated full-time Customer Service Manager. He was not satisfied the nominated position was genuine.
Mr Ryan Catzel, on behalf of the applicant, appeared before the Tribunal on 24 June 2016 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 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Evidence before the Tribunal
The applicant’s business is a 30,000 m² warehouse and self storage facility located in Rosebery, New South Wales. The facility caters for residential clients and also small and large multinational businesses. The applicant has provided a list of the corporate clients including the following: Philip Morris, News Corporation, Max Brenner, University of New South Wales, AGL Energy, and Crown Forklifts.
At the time of application the applicant provided a copy of an employment agreement between the applicant and the nominee, Ms Jay Esperanza Songkit stating a salary of $54,200 (plus superannuation) to work in the nominated position, Customer Service Manager. The job description provided sets out some broad responsibilities for the position as follows:
a.to oversee all aspects of the customer relationship for the business by developing and maintaining strong customer services, policies and procedures
b.to develop after sales services and continuously improve procedures, to measure customer satisfaction, determine new customer requirements and identify areas of improvement
c.liaise with customers in order to identify and respond to expectations by troubleshooting and investigating each case when required
d.complete team’s daily activities to coach behaviours and track results, progress and performance
e.monitor, guide and train current and new staff with customer service care, product knowledge, guidance and the company’s policies
f.improve customer service quality results by studying, evaluating and redesigning processes, establishing and communicating service metrics, monitoring and analysing results, and implementing change.
The applicant provided to the Department copies of policies developed for undertaking various processes within the facility.
The delegate formed the view that the applicant had not demonstrated that the nominated position is genuine. He concluded that r.2.72(10)(f) had not been met.
Prior to the hearing the Tribunal invited the applicant to provide further documentary evidence. The applicant provided emails between clients and the Customer Service Manager; policies and procedures; phone bills recording all calls handled by the nominee; and an explanation for why the applicant considers the position to be genuine.
After hearing the applicant provided the following documents:
a.a proposed employment agreement dated 28 June 2016 between the applicant and the nominee indicating she will be paid a base salary of $65,000 and superannuation of 9.5%. She will work 38 hours per week, access to sick leave and have 4 weeks annual leave.
b.The applicant’s financial report for the year ending June 2015 indicating income of $5,069,340 and salary expenditure of $613,060. The profit and loss statement indicates retained earnings at the end of the financial year of $2,306,187 and total equity of $2,306,188.
c.The nominee’s bank statement showing fortnightly deposits of salary from the applicant’s in amounts ranging from $956-$2,256.
At the hearing the applicant provided a copy of the organisational chart which shows the business employs about 20 people and the Customer Service Manager supervises about several people, including the building manager, warehouse manager, logistics manager and head of operations.
At the hearing the applicant described the size and complexity of the business. He explained that the nominee has been working for the business for about 3 years and has a very good understanding of the processes and client needs. She is currently working in the position. The business has 2 branches; one in Sydney and the other in Melbourne. They are in the process of purchasing another site in Alexandria for about $15m. The position reports to the General Manager. It supervises a number of managers in the business. It also has a role in the payment of wages.
The applicant said the General Manager position is involved in high level activities. Most recently he has been involved in sourcing the new site in Alexandria and growing the business. He is involved in marketing, rebranding and business direction. He provided some training to new staff. He had been recruiting staff but has left the most recent recruitment process to the position because he was too busy. It concerned the appointment of a sales person. The nominee facilitates his focus on growing the business by undertaking some of his managerial duties.
The applicant said the position provides much of the in house on the job training for new staff. While the business uses a manual prepared by the Self Storage Association of Australia, the nominee prepares some policies specifically for this business and then ensures they are implemented. These include procedures ensuring occupational health and safety.
The applicant has provided BAS statements for the last 12 months of trading. Sales vary and for the Sydney site are at about $550,000 per month. The applicant said the business’ profit is about $110,000 per month. The salary expenditure is over $600,000 per year. This is consistent with the financial report and the BAS provided. The staff are paid award wages and are paid by bank transfer. There is a bookkeeper who manages the wages.
The applicant described the complexity of the demands on the position. It is a very dynamic position, constantly dealing with client demands and business issues. The nominee deals with some clients directly and with others through other staff, depending on the relationship. There are about 1200 small warehouses within the Rosebery site. There are corporate customers who are very demanding. The nominee manages the competing demands in a large dynamic business. She manages the expectations of a range of diverse customers. She deals with issues in person, on the phone and by email. There are a significant number of containers delivered on a daily basis and she ensures that the team makes sure that containers can be emptied as required. She coordinates the services and staff to meet these demands.
The nominee also manages complaint handling. For example during recent flooding in Sydney there were leakages and a number of customers complained about damaged stock. The nominee coordinated the complaint handling and responses.
The nominee also supervises the front desk to make sure staff are dealing with clients appropriately. Issues are escalated to the nominee when they cannot be resolved by junior staff.
To meet the varying demands, clients are constantly moving around the warehouse. The nominee is responsible for making sure the space is coordinated to provide for the customers. For example one large client has 1730 individual modules stacked, to be accessed at various times. The nominee deals with issues arising, making sure that client’s needs are met and she manages the list for access to the various modules. Because the business has large clients who want access to their space immediately the nominee has to make sure problems are resolved quickly. There are about 130 trucks entering the facility every day. She is responsible for ensuring the traffic flows efficiently. She draws up and implements procedures. Sometimes there can be up to 100 workers and clients on site at one time. The nominee has policies in place to make sure it is safe. She liaises with various staff by two way radio. She coordinates the warehouse from the office using computer screens. She has also coordinated the use of the warehouse for filming purposes. She spends hours every week improving procedures to make the warehouse facility works more efficiently.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The applicant is nominating the occupation of Customer Service Manager, ANZSCO 149212, which is an occupation under s.140GB(1)(b): r.2.73(1A)(a). The applicant has identified in the nomination Ms Jay Esperanza Songkit, a proposed applicant for a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b). The Department’s records confirm that the nomination was made online using the approved form 1196 (internet) and the prescribed fee has been paid; r.2.73(2), (3), (5) & (9). The applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5). The nomination includes the location, Rosebery, NSW, 2018, at which the occupation will be carried out, and the name and 6 digit ANZSCO code: r.2.73(4)/(4A).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Information before the Tribunal indicates that the applicant was approved as a standard business sponsor for a three year period commencing 8 October 2014. That sponsorship remains in force and the Tribunal is satisfied that the applicant, at the time of this decision, is a standard business sponsor.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
On the basis of information on the nomination application the Tribunal is satisfied that the applicant has identified Ms Jay Esperanza Songkit as the person to undertake the nominated occupation and that Ms Songkit is a proposed subclass 457 visa applicant.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·the location(s) at which the nominated occupation is to be carried out.
On the basis of information provided in the application, the Tribunal is satisfied that the applicant provided the relevant 6 digit ANZSCO code and specified the location for the position at which the nominated occupation is to be carried out.
For these reasons the requirements of r.2.72 (8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no adverse information of the type described above known to the Department about either the applicant or an ‘associated person’.
Given the above, the Tribunal finds that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 15/092. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of Customer Service Manager and corresponding code 149212 appear on the relevant list in the relevant instrument. The instrument does not require the nomination to be supported in writing by a specified organisation.
For these reasons, the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028, $250,000: r.2.72(10)(AB).
The employment agreement, which sets out the terms and conditions of employment, indicates that the nominee’s annual salary will be $65,000 plus superannuation.
The organisational chart provided indicates that the applicant employs one Customer Service Manager and that the nominee currently occupies that position. As there is no Australian employee performing the same role as the nominee at the same location, the Tribunal has had regard to the methodology specified in IMMI 09/113 in assessing whether the applicant has determined the terms and conditions of employment that would otherwise be provided in accordance with the methodology set out in that instrument.
There is no evidence before the Tribunal to indicate that there is a fair work instrument, state industrial instrument or transitional instrument that would apply to an Australian performing the role of Customer Service Manager. The applicant can therefore rely on the inclusive examples of ‘relevant information’ listed in the instrument, such as remuneration surveys and job vacancy advertisements to determine what would be payable to an Australian performing an equivalent role.The Tribunal has considered various job vacancy advertisements provided by the applicant for similar roles indicating that base salary is $55,000 plus.
The Tribunal has had regard to those job vacancy advertisements and the terms and conditions of employment, as set out in the employment agreement, and is satisfied that the terms and conditions of employment for the nominee are no less favourable than those which would be provided to an Australian performing equivalent work in the same workplace.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 which is currently $53,900.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
The nominee’s annual earnings will be at least $65,000. As this amount exceeds the TSMIT, which is currently specified as $53,900, the Tribunal is satisfied that the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e).
The certification relates to the tasks of the position, the nominated occupation and the skills and qualifications of the visa holder, or proposed visa holder.
The applicant has made the relevant certifications in the nomination application, and on this basis the Tribunal is satisfied that the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The delegate formed the view the position associated with the nominated occupation was not genuine.
The Tribunal has had regard to the applicant’s written and oral evidence about the position and considers this evidence to be persuasive. It is satisfied the business’ needs are more complex than the delegate found. The business provides storage facilities for a range of clients, about 1200 in total, including large entities such as Philip Morris, News Corporation, Max Brenner, University of New South Wales, AGL Energy, and Crown Forklifts. The Tribunal is satisfied the position is required to meet the competing demands and needs of a range of clients. It is satisfied that, while the position ensures the Self Storage Association policies and procedures are implemented, the position prepares and implements tailored policies and procedures to meet the business’ particular needs. It is satisfied the position supervises a range of customer service and sales focused staff. It is also satisfied the business is responsible for managing the complaints and ensuring they are dealt with promptly. It also accepts the position will provide employees with training and direction in maintaining quality service. It will liaise with a range of clients and facilitate the expansion of the business by assisting the General Manager and improving the quality of the services provided.

Overall, having considered the position description provided in writing and at the hearing, the Tribunal is satisfied the position will develop and review policies and procedures concerning customer relations and services provided, provide direction and feedback to employees, assist with recruitment, manage, monitor and motivate staff, follow up on complaints and customer satisfaction, liaise with clients and ensure their needs are met promptly.
Having regard to the tasks typically included in the occupation Customer Service Manager as described in the ANZSCO and the duties of the nominated position, particularly in the context of the nature and operations of the business, the Tribunal is satisfied that the tasks of the position are consistent with that occupation Customer Service Manager. The Tribunal is accordingly satisfied that the position associated with the nominated occupation of Customer Service Manager is genuine.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in an instrument. There is no current instrument for the purposes of this regulation.
A copy of an employment agreement which set out the terms and conditions of employment was provided to the Tribunal. The Tribunal is accordingly satisfied that 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). The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
In this case, the nominated occupation is Customer Service Manager, ANZSCO 149212. This occupation is classified as Skill Level 2 in the ANZSCO dictionary. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In the circumstances, the skill and occupation exemption to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the requirement in s.140GBA.
For these reasons the requirements of s.140GBA are not applicable.
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Denise Connolly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(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 4222

4 August 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction