1507962 (Migration)
[2016] AATA 4702
•28 November 2016
1507962 (Migration) [2016] AATA 4702 (28 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Amazon Power Pty Ltd
CASE NUMBER: 1507962
DIBP REFERENCE(S): BCC2015/488503
MEMBER:Rania Skaros
DATE:28 November 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 28 November 2016 at 9:15am
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 26 May 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 13 February 2015. 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 nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The applicant has provided a number of documents in response to the Tribunal’s request for information. The documents included current financial reports, an organisational chart, material relating to the operations of the applicant’s business, a list of the business’ clients/customers and information relating to the position and the terms and conditions of employment. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
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).
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 has had regard to the material on the Department’s file and is satisfied that applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination an applicant for a Subclass 457 visa as the person who will work in the occupation. The nomination was made using the approved form and fee. The applicant has identified Ms Vivian Rodrigues Aun Machado in the nomination. The nomination includes the location, Brookvale NSW, at which the occupation will be carried out and includes the name and/or 6 digit ANZSCO code, namely Customer Service Manager 149212.
Given the above, the Tribunal finds that 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 was approved as a standard business sponsor on 14 January 2015 for a period of 3 years. The Tribunal is accordingly satisfied that the applicant 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.
The applicant has identified in the nomination Ms Vivian Rodrigues Aun Machado, who is an applicant for the visa, to work in the nominated occupation.
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
In relation to the requirement in r.2.72(8A), the Tribunal is satisfied that the applicant has provided the required information, including the name of the occupation and the corresponding 6-digit ANZSCO code, which the applicant indicated is Customer Service Manager 149212, and the location at which the location at which the nominated occupation is to be carried out, which the applicant indicated is Brookvale 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.
It is submitted that there is no adverse information known about the applicant or a person associated with the applicant and there is no evidence before the Tribunal to suggest that this is not the case.
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 the relevant instrument. 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 nominated occupation of Customer Service Manager and its 6 digit code (149212) is specified in the relevant instrument. For these reasons the requirements of r.2.72(10)(aa) are met.
There is no requirement for the nomination to be supported 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, which is $250,000: r.2.72(10)(AB).
It is submitted that the nominated position is currently filled by the nominee and there is no Australian equivalent performing equivalent work at the same location.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in contract of employment which indicates that the annual base salary of the nominee is $63,000. The contract also sets out the details of the nominee’s superannuation and leave entitlements and has been signed by the employer and nominee. It is submitted that the nominee’s earnings are higher than those that would be provided to an Australian equivalent. In support of this submission the applicant provided current market salary information from Payscale research and Job Outlook indicating that the annual base salary for customer service managers in Australia /Sydney is between $56,000 and $61,500.
Having considered the terms and conditions of employment, including the nominee’s earnings, the Tribunal is satisfied that the nominee’s earnings are no less favourable than the Australian equivalent.
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).
In this case the nominee’s annual earnings are $63,000, as this is not equal to or greater than $250,000, as specified in IMMI 13/028, r.2.72(10)(cc) therefore applies.
As indicated above, the annual earnings, including the base rate of pay, of an equivalent Australian citizen or permanent resident is at least $56,000, which the Tribunal finds is greater than the TISMIT.
For these reasons 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 relevantly 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
·the nominated occupation is with a business or an associated entity; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The Tribunal is satisfied that the relevant certifications have been made in the nomination form.
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.
In determining whether the position is genuine under r. 2.72(10)(f), or as expressed by the court in Cargo First Pty Ltd v MIBP[1], whether the position really is what it purports to be, the Tribunal is required to undertake a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the sponsor. The necessary qualitative analysis, as indicated by the court, requires more than just examining whether the duties and tasks the employee undertakes (or will undertake) include the majority of those referred to in the ANZSCO in respect of the nominated occupation.
[1] [2015] FCCA 2091 at [30] per Judge Smith. The decision at first instance was upheld on appeal in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30, and the construction of r. 2.72(10)(f) at first instance was endorsed at [36].
The applicant has nominated the occupation of customer service manager. In ANZSCO the occupation of customer service manager (149212) is set out in the unit group 1492 Call or Contact Centre and Customer Service Manager and is primarily responsible for supervising, controlling, administering, and planning the relevant customer service functions of a business. The ANZSCO description contemplates a business that has relatively intricate customer interactions with an element of ongoing after sales service sufficient to justify a genuine need for a manager focusing on customer service functions.
The delegate in this case was not satisfied that the business had a genuine need for a customer service manager due to the limited evidence provided about the applicant’s claimed increase in business activity and the absence of an organisational chart demonstrating that the position is consistent with the size and management structure of the business.
The Tribunal now has before it significantly more evidence than what was before the delegate, including the financial reports and activity statements which substantiate the applicant’s claim that the business client base, and thus its business activity, is increasing. The financial report before the delegate indicated a turnover of $1.2 million in the financial year ending 2014. The financial reports now before the Tribunal indicate that the business’ turnover increased to $1.7 million in 2015 and $2.6 million in 2016. The supporting evidence also substantiates the applicant’s claim that its client/customer base has increased from 700 accounts to over 3000 accounts. The applicant operates a wholesale and distribution business. It is an exclusive supplier of acai based health products and supplements. Acai, as described in the supporting material, is a particular berry only found in Brazil’s Amazon.
The customer list provided to the Tribunal indicates the business’ clients include small, medium and large size retail stores throughout Australia. The applicant’s director, Mr Tognetti, has also indicated that the business has secured a supply deal with the largest food distributor Indonesia (Lotus Foods) and is in the process of securing a food license for export to Indonesia and is in the process of researching the market in Singapore. Mr Tongetti submitted that the demand for their products are substantially increasing and that the business had a genuine need for a full time customer service manager to ensure that it delivers excellent customer service and respond to market needs. It was submitted that the nominee has extensive knowledge of the business’ product range and of its customer base. The nominee has been employed on a part-time basis with the business and has been instrumental in establishing and maintaining relationships with existing clients and ensuring that all of the business’ staff are providing first class customer service to the business’ customers.
The responsibilities and tasks of the position are described as including reviewing and developing customer service policies to deliver high standards of service to customers, planning and implementing post sale services, liaising with other managers within the business to ensure customer service standards are being met, handling customer complaints and enquiries, training the sales and service staff and preparing relevant reports. In the context of the applicant’s business operations and the fact that it has an established customer base with which it has an ongoing relationship, the Tribunal is satisfied that the core tasks to be performed in the position are consistent with the types of tasks at the level described in the ANZSCO for the occupation customer service manager.
The Tribunal has also had regard to the organisational chart which indicates that the applicant employs and contracts other managers who work at the same level or above the position of customer service manager, including a marketing manager, design manager, accountant and online manager. Directly below the position are customer service assistants, account manager, logistics (contractors) and warehouse coordinator. The organisational structure is indicative of the position being a managerial role.
The Tribunal considers that the size of the applicant’s business, its management structure and nature of its operations support its claim that it has a genuine need for a customer service manager. The Tribunal is also satisfied that the nature of the role, in the context of the business’ operations, including the responsibilities and tasks to be performed are consistent with the tasks included for the occupation of customer service manager at the skill level described in the ANZSCO.
For the above reasons, the Tribunal is satisfied that the position can genuinely be classified as that of a customer service manager 149212. It follows, that the Tribunal is satisfied that the position associated with the nominated occupation is genuine. Therefore, 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 the instrument
The applicant has provided a copy of a signed contract of employment in respect of the nominee.
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).
As the applicant is not a party to a work agreement, 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 nomination is subject to the skill exemption as provided for in the relevant instrument as it is an occupation in skill level 2 and requires at least a diploma qualification.
For these reasons, the labour market testing requirements in s.140GBA 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.
Rania Skaros
MemberATTACHMENT - 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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