1505557 (Migration)

1505557 (Migration) [2016] AATA 4086 (13 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Natures Care Manufacture Pty Ltd
CASE NUMBER:  1505557
DIBP REFERENCE(S):  BCC2014/218170
MEMBER:Dione Dimitriadis
DATE:13 July 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.
Statement made on 13 July 2016 at 2:53pm

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 2 April 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, Natures Care Manufacture Pty Ltd (also known as Nature’s Care Manufacture Pty Ltd), applied for approval on 23 January 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(9) because the delegate found that there is adverse information known to Immigration about the applicant’s suitability as an approved sponsor and the delegate found that it is not reasonable to disregard any adverse information known to Immigration about the applicant.
On 1 April 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to its application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 15 June 2016. On 7 June 2016 the applicant’s representative advised the Tribunal that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
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 applicant applied to the Minister for approval of a nomination of an occupation under s.140GB of the Act. The nominee is Che-Min Chou. The nominated occupation is Customer Service Manager (ANZSCO Code 149212). In the application, the applicant stated that the nominee’s base rate of pay is $57,000 and the guaranteed annual earnings are $57,000. Under the heading ‘Labour Market Testing’ the applicant stated that it had not tested the Australian labour market to ensure that there are no suitably qualified and experienced Australian citizens or permanent residents readily available to fill the position or other similar positions.
The applicant provided a number of documents to the Department of Immigration (the Department) including copies of the approval of the applicant by the Department as a standard business sponsor from 26 September 2012 to 26 September 2015, a contract of employment, organisational chart (2011), PayScale printout, statements from Alex Wu, the managing director of the applicant, about the nominated position, the nominee and about determining the salary for the nominated position.
The delegate refused to approve the nomination on 2 April 2015.
At the time of lodging the application for review, the applicant provided a copy of the delegate’s decision.
On 12 February 2016 the Tribunal wrote to the applicant and invited the applicant to provide information to show that the nomination meets all the criteria in r.2.72.
On 18 February 2016 the Tribunal received a request for an extension of time to which the Tribunal agreed.
On 7 March 2016, the Tribunal received a number of documents from the representative including copies of the following:
·Notification from the Department on 13 October 2015 that the applicant was approved as a standard business sponsor from 13 October 2015 to 13 October 2020;
·Letter dated 14 September 2015 from auditors, Hayes Knight;
·Two pages of the nominee’s passport from the Republic of China;
·Audit report dated 2 February 2016 from Scolari Comerford Chartered Accountants stating that the applicant is complying with Commonwealth workplace laws and instruments in respect of record keeping, pay and conditions;
·Audit report dated 12 August 2015 from Scolari Comerford Chartered Accountants;
·Organisational chart;
·‘Compliance workplace laws & instruments self-audit report’ by Scolari Comerford Chartered Accountants;
·Draft balance sheet for the applicant as at 31 December 2015;
·Draft profit and loss statement from January 2015 to December 2015;
·Australian Taxation Office business portal itemised account for the applicant;
·Fair Work Ombudsman ‘fair work information statement’;
·‘Regulations governing establishment of internal control systems by public companies’ (Taiwan);
·‘Certification form –paying for visa sponsorship’ signed by Michael Wu on 7 March 2016;
·IELTS test results undertaken by the nominee on 28 February 2015;
·Emails between the applicant and Fair Work Ombudsman in February 2016;
·Letter dated 7 March 2016 regarding genuine position from Alex Wu of the applicant to the Tribunal;
·Checklist for the applicant’s and Natralab’s compliance with Fair Work Ombudsman Enforceable Undertaking commenced on 16 February 2016;
·Letter dated 7 March 2016 from Alex Wu of the applicant to the Tribunal;
In the letter dated 7 March 2016, the applicant stated that it has been approved as a standard business sponsor from 13 October 2015 to 13 October 2020. The business nomination lodged on 23 January 2014 lists the nominee as Che-Min Chou, who currently lives in Taipei City. The applicant certified in the nomination that the tasks of the position include a significant majority of the tasks of the nominated occupation of Customer Service Manager as listed in the ANZSCO dictionary. The applicant stated that the nominee will be employed on an annual base salary of $66,500 excluding superannuation and the applicant will engage the nominee for a Subclass 457 visa only as an employee under a written contract of employment. The nominee will be employed pursuant to an employment contract made in accordance with the Fair Work Act 2009 and the National Employment Standards. The applicant has no Australian citizens or permanent residents currently employed who are performing equivalent work. The applicant has determined the terms and conditions of employment that would apply to Australian citizens and Australian permanent residents to perform equivalent work in the same workplace in the same location with regard to “relevant information” as defined in Legislative Instrument 09/113, in particular the Australian Government’s Job Outlook website. The applicant stated that the proposed salary of $66,500 exceeds the market salary rate for an Australian citizen or permanent resident performing equivalent work at the same location. As well, the market salary rate exceeds the Temporary Skilled Migration Income Threshold (TSMIT).
The applicant stated that it acknowledges that there were two incidents of ‘adverse information’ but submits that it is reasonable for the Minister to disregard these factors. The applicant stated that on 19 March 2015 the Department made a decision under s.140M(1)(c) of the Act to bar the applicant for 3 months from sponsoring persons for Temporary Work (Skilled) Subclass 457 visas. On 19 March 2015 the Minister also made a decision under s.140M(1)(d) of the Act to bar the applicant for 3 months from making future applications for approval as a standard business sponsor.
The applicant stated that the bar ran for 3 months, from the date of the notice on 19 March 2015 to 19 June 2015. The applicant submitted that it is reasonable to disregard this information on the basis that the applicant has served its bar and further the Department has subsequently approved the applicant as a standard business sponsor and has granted Temporary Work (Skilled) (Subclass 457) visas to visa applicants sponsored by the applicant. The applicant stated they infer that the Department has determined it reasonable to disregard the adverse information.
The applicant stated that it provided the Fair Work Ombudsman with an Enforceable Undertaking dated 16 February 2015, for the purposes of s.715 of the Fair Work Act in respect of various breaches of the Fair Work Act 2009 committed by the applicant. The applicant stated that it has lodged a copy of the undertaking in support of the application for review. The applicant submitted that it is reasonable to disregard this adverse information on the basis that the applicant has met and continues to meet all of its undertakings. The applicant referred to the Enforceable Undertaking Compliance Checklist and audits dated 12 August 2015 and 2 February 2016 prepared by Scolari Comerford Chartered Accountants. The audits confirm that the applicant is complying with Commonwealth workplace laws and instruments, including the Fair Work Act, the Manufacturing Award and the Wine Award in respect of pay, conditions and record keeping in relation to all of the relevant company’s employees.
The applicant further submitted that its mandatory ongoing compliance with the Enforceable Undertaking is an additional insurance of its suitability as an approved standard business sponsor. The Enforceable Undertaking refers to a second company, Natralab Australia Pty Ltd, which was an associated entity of the applicant but has ceased trading. It complied with and met its undertakings.
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 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 is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a). The applicant identified in the nomination 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).
There is no evidence before the Tribunal that the nomination was not made using the approved form and fee (IMMI 13/063). The Department wrote to the applicant on 23 January 2014 and acknowledged receiving the application and the nomination application fee. The Tribunal is satisfied that the applicant meets r.2.73(2), (3), (5) and (9).
The applicant identified the nominee in the nomination: r.2.73(4) and (4A) and r.2.72(5).
The nomination includes the location at which the occupation will be carried out, and the name and 6 digit ANZSCO code in the circumstances of this case where the applicant is a standard business sponsor: r.2.73(4) and (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 applicant provided a copy of the current approval as a standard business sponsor. The applicant was approved as a standard business sponsor from 13 October 2015 to 13 October 2020.
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.
The Tribunal finds that the applicant has identified the visa applicant for the Subclass 457 visa by name (Che-Min Chou). The Tribunal finds that Che-Min Chou is the Subclass 457 visa applicant for the nominated position. The Tribunal therefore finds that the applicant meets r.2.72(5).
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. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant Legislative Instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
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;
·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 relevant Legislative Instrument; 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; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal is satisfied that the applicant has provided the name of the occupation and the corresponding 6-digit ANZSCO Code. The applicant stated in the application and in the letter dated 7 March 2016 to the Tribunal that the nominated occupation is Customer Service Manager and the ANZSCO Code is 149212.
The applicant also stated in the letter dated 7 March 2016 that the nominated occupation will be carried out at 5 Minna Close, Belrose, NSW.
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.
As stated in the delegate’s decision, the applicant was barred from being an approved sponsor under s.140M of the Act for three (3) months. The bar on the applicant was from 19 March 2015 to 19 June 2015.
The Tribunal is satisfied that such action is ‘adverse information’ under r.2.72(9)(a).
The issue now under r.2.72(9)(b) is whether it is reasonable for the Tribunal to disregard this adverse information.
The Tribunal has had regard to the information provided by the applicant that it acknowledged that there were two incidents of ‘adverse information’ but it submitted that it is reasonable for the Minister (and now the Tribunal) to disregard these factors. The applicant provided the information to the Tribunal that on 19 March 2015 the Department made a decision under s.140M(1)(c) of the Act to bar the applicant for 3 months from sponsoring persons for a Temporary Work (Skilled ) Subclass 457 visas and also made a decision under s.140M(1)(d) of the Act to bar the applicant for 3 months from making future applications for approval as a standard business sponsor.
The Tribunal accepts that the bar ended on 19 June 2015. The Tribunal also accepts that the Department has subsequently approved the applicant as a standard business sponsor for a period of five (5) years. The standard business sponsorship was approved from 13 October 2015 to 13 October 2020. The applicant stated that the Department has granted Temporary Work (Skilled) (Subclass 457) visas to visa applicants sponsored by the applicant. The Tribunal has had regard to the Department’s ICSE records and accepts that, since the bar imposed on the applicant ceased, the Department has granted Subclass 457 visas to several visa applicants.
The applicant submitted that they infer that the Department has determined that it is reasonable to disregard the adverse information.
The Tribunal has also had regard to the Enforceable Undertaking dated 16 February 2015 which the applicant provided to the Fair Work Ombudsman for the purposes of s.715 of the Fair Work Act in respect of various breaches of the Fair Work Act 2009 committed by the applicant. The applicant submitted that it is reasonable to disregard the adverse information on the basis that the applicant has met and continues to meet all of its undertakings.
The applicant provided audits dated 12 August 2015 and 2 February 2016 prepared by Scolari Comerford Chartered Accountants. The applicant stated that the audits confirm that it is complying with the Commonwealth workplace laws and instruments, including the Fair Work Act, the Manufacturing Award and the Wine Award in respect of pay, conditions and record keeping in relation to all of the relevant company’s employees. The applicant further submitted that its mandatory ongoing compliance with the Enforceable Undertaking serves as an additional insurance of its suitability as an approved standard business sponsor. The applicant stated that the enforceable undertaking refers to a second company, Natralab Australia Pty Ltd, which was an associated entity of the applicant but has ceased trading. The applicant stated that Natralab Australia Pty Ltd complied with and met its undertakings.
On the basis of the evidence provided, including the Enforceable Undertaking provided to the Fair Work Ombudsman for the purposes of s.715 of the Fair Work Act, the two audits, the approval of the applicant as a standard business sponsor for five years from 13 October 2015 and the grant of several Subclass 457 visas to visa applicants who were nominated by the applicant and the submissions from the applicant to the Department and the Tribunal, the Tribunal is satisfied that it is reasonable to disregard the 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 16/059. 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 finds that the applicant is a standard business sponsor and the nominated occupation of Customer Service Manager and corresponding ANZSCO Code 149212 correspond to an occupation and 6-digit code specified in the relevant instrument. For these reasons the requirements of r.2.72(10)(aa) are met.
The instrument does not require that the nomination be supported in writing by a specified organisation. For these reasons 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. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
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, namely $250,000: r.2.72(10)(AB).
On the basis of the evidence provided by the applicant, the Tribunal finds that there is no Australian citizen or Australian permanent resident who performs equivalent work in the applicant’s business in the same location. The Tribunal finds that the nominee’s annual earnings are not equal to or greater than those specified in IMMI 13/028. Accordingly, r.2.72(10AA) applies.
The applicant provided to the Tribunal a contract of employment stating that the nominee will be paid $66,500 per annum. The applicant also provided a letter dated 7 March 2016 stating that the nominee will be employed on an annual base salary of $66,500 (excluding superannuation). The applicant provided a printout from the government’s website Joboutlook ( This indicates the median weekly earnings for a full-time Customer Service Manager (approximately $66,220). The Tribunal is satisfied that the proposed base salary for the nominee is above median earnings for an Australian citizen or Australian permanent resident performing equivalent work at the same location.
The Tribunal is satisfied on the basis of the evidence provided that the terms and conditions of employment for the nominee will be no less favourable than the terms and conditions that are provided, or 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.
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.
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 ($250,000): r.2.72(10AB).
The Tribunal is satisfied that the base rate of pay offered to the nominee, being $66,500, is greater than the current TSMIT of $53,900.
For these reasons 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). 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 instrument IMMI 16/059;
·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 instrument IMMI 13/067;
·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 IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 16/059.
The Tribunal is satisfied on the basis of the relevant certifications in the nomination application 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 applicant is a manufacturer in the complementary “medicines industry”, and their “softgel” products include supplements such as premium fish oil, propolis, royal jelly, lecithin, vitamin E and wild krill oil. The applicant’s products are exported. The Nature’s Care Group, which includes the applicant and Nature’s Care Global Franchising Pty Ltd, also operates subsidiary entities in Asia and has international offices servicing these locations. According to the letter from Alex Wu dated 7 March 2016, sales have increased in 2012, 2013 and 2014. The applicant stated that it has about 200 employees. The applicant stated that it has provided copies of the recent financials of the business and ATO Business Portal in support of the application. However, the applicant only provided draft financial statements. The balance sheet and profit and loss statement were both drafts. The applicant did, however, provide the itemised account shown on the Australian Taxation Office’s Business Portal.
The applicant stated that it is currently in the process of preparing for a public listing in Taiwan. The business is an international manufacturer with many departments including Finance, Sales and Marketing, IT, Planning and Production, Warehousing, Supply Chain, Quality Assurance, Administration and “HR hearing” and Research and Development. The applicant stated that it is crucial to the success and growth of the business to be able to continue to administer and review their customer service and after sales service to maintain sound customer relationships with their customers.
The Tribunal has had regard to the evidence about the business of the applicant, including the organisational chart, the financial statements, the itemised account shown on the Australian Taxation Office’s Business Portal and the submissions about the genuineness of the position and the need for a Customer Service Manager in the business which has about 190 customers including major international retailers. The Tribunal is satisfied that the position associated with the nominated occupation 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 written contract to the Minister, unless the nominated occupation is specified in a Legislative Instrument. There is no current instrument.
The applicant has given a copy of the employment contract dated 23 January 2014 for the nominee to the Minister. The Tribunal finds that the requirements of r.2.72(10)(h) are met.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The labour market testing condition does not apply to the applicant because the nomination is subject to the occupational exemptions (see IMMI 13/137): s.140GBC. The Minister specified for the purpose of paragraph 140GBC(4)(b) of the Act, all occupations that are classified in the ANZSCO as Skill Level 2. The indicative skill level of the nominated occupation of Customer Service Manager is Skill level 2.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). 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 a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
For the reasons given above, the applicant meets all the applicable criteria prescribed in r.2.72 of the Regulations for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.
Dione Dimitriadis
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.
1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2
UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS
CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

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

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre
Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager

.....
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

[2016] AATA 4086

13 July 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction