1512078 (Migration)

1512078 (Migration) [2016] AATA 3843 (28 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Asian Gold Trading Pty Ltd
CASE NUMBER:  1512078
DIBP REFERENCE(S):  BCC2015/803092
MEMBER:Bruce Henry
DATE:28 April 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 28 April 2016 at 3:19pm

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 14 August 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 12 March 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 visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The applicant nominated Mr Yang Jiajun for the occupation Marketing Specialist, ANZSCO Code 225113.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10) because the position associated with the nominated occupation was not genuinely required by the nominating business.
Ms Hui-Hsueh Chang appeared before the Tribunal on 5 April 2016 to give evidence and present arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
As indicated above, the applicant has nominated Mr Yang for the occupation Marketing Specialist, ANZSCO Code 225113. That occupation is a subgroup of Unit Group 2251, described in ANZSCO as follows:
UNIT GROUP 2251 ADVERTISING AND MARKETING PROFESSIONALS
ADVERTISING AND MARKETING PROFESSIONALS develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
oplanning, developing and organising advertising policies and campaigns to support sales objectives
oadvising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
ocoordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints
oanalysing data regarding consumer patterns and preferences
ointerpreting and predicting current and future consumer trends
oresearching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information
osupporting business growth and development through the preparation and execution of marketing objectives, policies and programs
ocommissioning and undertaking market research to identify market opportunities for new and existing goods and services
oadvising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels
Occupations:
225111 Advertising Specialist
225112 Market Research Analyst
225113 Marketing Specialist …
225113 MARKETING SPECIALIST

Alternative Titles:
Marketing Consultant
Marketing Coordinator
Marketing Officer

Identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.
Skill Level: 1
Specialisations:
Brand Manager
Category Manager
Product Manager
Sales Promotion Officer
In a Statement explaining the reasons for employing the nominee accompanying the application the applicant said:
We advise that the position of our Marketing Specialist requires the following attributes:
·Bachelor degree in Business (preferable)
·Chinese language ability (to communicate with Chinese speaking buyers, suppliers in Taiwan and directors)
·English language ability (to communicate with English speaking buyers)
·Excellent communication skills, both written and verbal
·Ability to coach, train and motivate team members
·Ability to build good rapport with customers
·Ability to analyse current customers and reporting on external opportunities
·Ability to develop marketing strategies and plan
Our nominee Mr. Jiajun YANG has been working with us since June 2011 as a Marketing and Sales Representative. He holds a Bachelor degree in Business and is on the way to complete his Master degree (only one subject left). We recognise that he has a lot of attributes that could benefit our business.
The applicant also provided a Statement of the need of the nominated position and its job duties with the application which said:
Asian Gold Trading Pty Ltd was established in Australia on 25 February 2008. Its office and warehouse are located at 30/37 Mortimer Road, Acacia Ridge, Brisbane.
Our company has since been operating very successfiffly in importing and wholesaling/retailing Asian groceries from Taiwan to Australia. We have a comprehensive range of products and the company promotes its products through advertising in local Chinese newspapers and introducing new products to consumers directly.
Our buyers are from several sectors, such as supermarkets, restaurants, convenience.; stores, 'churches, manufacturers, retailers and wholesalers in other states.
As our company is currently expanding, I have been responsible for the planning and setting up the business, researching and developing the business opportunities, negotiating with potential buyers and managing my staff since day one. I also check the quality of the goods to ensure that they meet the specifications of our buyers. Unfortunately, I found that it is not practical and efficient to run all the duties by myself. Therefore it is necessary to employ a suitable person who can investigate market needs and market trends for us.
At the moment, we found that the competitiveness in the Asian grocery markets have increased dramatically in recent year. We believe that we need better marketing strategies to gain better market shares. We strongly believe a marketing specialist will help us with doing marketing analysis and forecast to adjust products and strategies in time,
Detailed job description and responsibilities has been uploaded in DIBP's system separately for your consideration.
A copy of the employment contract was provided which set out the job duties in Clause 2:
The Employee will be expected to perform the following job duties:
·Setting product positioning, prices and discount rates.
·Marketing strategies planning and implementing with promotion strategies and advertisements budget.
·Coordinating event to promote products like Taiwanese Products Show event every year to boost sales, increase consumers' awareness of brand and products, and promote Taiwanese products' culture.
·Exploring the potential development of products and further to fit the Australian market.
·Collecting and analyzing information from market surveys and marketing researches, provide correct information and advises to company and manager to identify customers' current demands.
·Seeking new and appropriate products for Australian target market segmentation and potential customers.
·Planning sales goals and reporting analysis results each month in order to adjust promotion methods and switch marketing products.
·Exploring new potential customers and distribution channels to increase sales revenue.
·Manage budget and business growth by seeking potential markets contributed to a 15% increase in yearly sales.
·Design catalogue, targeting clients' needs, improve distribution time, increase accounts receivable and significantly improve customer service
·Launch and track successful sales and marketing initiatives for new products
·Pick up orders and arrange delivery
These documents were accompanied by an organisational chart for the business showing Ms Chang as the Director, an Accounting Department of three people and a Sales and Marketing Department also comprising three people including the nominee, Mr Yang. The chart shows two employees reporting to Mr Yang, a Products Assistant and a Driver.
The Department wrote to the applicant on 8 April 2015 seeking further information to demonstrate that the position associated with the nominated occupation was genuine. The applicant responded by letter dated 28 April 2015:
The increase in Chinese / Asian migrants as well as the popularity of Asian cuisines in recent years have a flow on effect on the demand of Asian groceries/products by the general public.
Our company was established in 2008 and has since been operating very successfully in importing and wholesaling Asian groceries. We have a comprehensive range of products and the company promotes its products through advertising in local Chinese newspapers and introducing new products to consumers directly. We have over several hundreds of different products to offer to our customers. Appendix 1 only shows a small range of products, a complete list can be provided upon request. Appendix 2 shows the advertising for our products.
Our company on an ongoing basis expands its scale and scope. Appendix 3 shows that our company's sales revenue has increased dramatically from AU$655,860 to AU$961,559 from 2010 to 2014. Appendix 4 shows the shareholders of Asian Gold Trading Pty Ltd purchased a warehouse under their family trust for the use by the nominating company due to business expansion. We distribute our products throughout Queensland and New South Wales. We are planning to expand our business nationwide in the next 3 years. As a Manager/Director, I often travel overseas and attend food shows to explore new products. Appendix 5 shows invitations to attend various shows. We are aiming to offer various types of Asian and foreign groceries/products in order to capture more market share.
As mentioned in the statement of the need for the nominated position which was lodged with the online application, I have been responsible for the planning and setting up the business, researching and developing business opportunities, negotiating with potential buyers and managing my staff since day one. I also check the quality of the goods to ensure that they meet the specifications of our buyers. Unfortunately, I found that it is not practical and efficient to carry out all the duties by myself. In order to achieve our expansion goal.
We need someone who can study market needs and market trends for us and someone who can focus on marketing development.
We are seeking a Marketing Specialist who is able to coordinate marketing campaigns and identify market opportunities for new and existing products in order to ensure that every aspect of the specification of our buyers can be met based on the company's cost and budget.
The person also needs to have the ability to create awareness of our brand to the general public as well as to keep good relationship with our buyers. We believe nominating the right person to such a position is the key to our company's success. The nominee has been working with us for nearly 4 years as a Marketing Sales Representative with satisfactory work performance. He also coordinated Taiwanese Products Show ever year (please see Appendix 6 - photos taken on the Taiwanese Products Show) on behalf of our company and helped us to negotiate prices with customers. We believe that he will be able to bring long term benefits to our company.
The applicant has provided the Tribunal with a copy of the decision record of the delegate setting out the reasons for the refusal of the nomination:
Subregulation 2.72(10)(f) requires that, if the person is a standard business sponsor, the Minister is satisfied that the position associated with the nominated occupation is genuine.
According to the statement provided by the applicant, ASIAN GOLD TRADING PTY LTD, is involved in "importing and wholesaling/retailing Asian groceries from Taiwan to Australia".
On 12 March 2015, ASIAN GOLD TRADING PTY LTD submitted evidence to the department demonstrating the requirement for the position of Marketing Specialist ANZSCO 225113 within their organisation.
The applicant was provided an opportunity to address the genuineness of the position on 08 April 2015, with the prescribed 28 days to provide the information requested. The applicant provided the following information to address the genuineness of the position:
·Product list: photographs of products for sale
·Newspaper advertisements
·Sales and revenue graph
·Rental agreement for a warehouse
·Invitations for Food Show from Food Taipei
·Photographs of events conducted by the applicant
·Detailed job description
·Imported Food Inspection Reports
·Statement regarding genuineness of the position
·Employment contract
·Organisational chart
On assessment of the information supplied by ASIAN GOLD TRADING PTY LTD, I am satisfied that the nominated position of Marketing Specialist does not appear to be a position necessary to the operations of the business.
The statement provided by the director of the company, Hui-Hsueh CHANG claimed that the business has been operating since 2008, with the office and warehouse located at [address] however the copy of lease for the premise was dated November 2013.
The employment contract provided provides information regarding the task and duties of the position, suggesting that the nominee will perform his day to day work as marketing specialist. Another statement provided claimed that the nominee has been working for the business as a Marketing and Sales representative since June 2011, but no evidence provided to support the claim, such as marketing strategies, data collection and analysation [sic] from market surveys and marketing researches, sales planning, designed catalogues, as mentioned on the job description.
I have considered the supporting documents, such as the product list, the invitations from Food Taipei for International Food Show, newspaper advertisement, but put little weight on them as no explanation and further information provided to support the relevancy of the documents.
The organisational chart provides information that the nominated position reports directly to the director and the position supervises the product assistant and a driver. It is not usual business practice for a Marketing Specialist to have a driver reporting directly to the position. On the contract provided, one of the tasks listed is to "pick up orders and arrange delivery", which is not a task usually associated with the position of a Marketing Specialist.
From the statement provided by the applicant, and from the lack of evidence provided to support the claim regarding the genuineness of the position within the business, I am not satisfied that the business needs a full time Marketing Specialist. I have also considered the size of the business, and I find that there is no evidence to justify the necessity for the position of a Marketing Specialist.
During the course of the review the applicant has provided further documents to the Tribunal, including financial reports for the business for the 2011, 2013, 2014 and 2015 financial years. These reports show:
·Wages expenditure for each financial year:
2011    $33,312.00
2012    $46,181.50
2013    $61,320.25
2014    $91,815.90
2015    $84,920.91
·An item for ‘salaries – associated persons’ as follows:
2011    $23,940.00
2012    $22,561.00
2013    $31,528.00
2014    $37,035.00
2015    $95, 520.00
·An increase in sales revenue from $509,225 in 2011 to $1,150,529.85 in 2015
·An increase in before tax profit from a loss of $15,255.75 in 2011 to a profit of $82,441 in 2015
The accounts show no expenditure on advertising in 2011, $209.09 in 2012, $1616.38 in 2013, $3575.01 in 2014, and $1559.10 in 2015.
The nomination proposes that a salary of $54,000 would be paid to Mr Yang.
At the hearing Ms Chang told the Tribunal that the salary referred to in the accounts was the amount paid to her as the Director of the applicant business, while the wages item covered all other employees of the business. She said they had six employees, including the nominee, who all work part time. Most of them are students, apart from her accountant, who had worked more hours before reducing her hours in 2015 so that she could study. This was why the wages paid in 2015 had been lower than in 2014. The Tribunal observed that the wages figure was low for six part time employees, and Ms Chang said that the six included her two children who were not paid a wage.
Ms Chang said that the nominee, Mr Yang, had worked as a delivery driver for her business while he was studying. In 2014 she employed a new part time driver, and Mr Yang started working in sales and marketing. She said that although it is small, the business needed a professional marketing specialist because marketing is very important in generating more business for the future. She had done the promotional work herself before Mr Yang started working in sales and marketing in 2014.
Ms Chang provided to the Tribunal two documents that she said had been prepared by Mr Yang for marketing purposes, a market analysis for new products that she wanted to introduce, and a ‘Promotion Event Plan’ for the Taiwanese tea product ‘3.15 I Love You’ which she said had been implemented in three supermarkets so far.
The Tribunal referred Ms Chang to the list of duties of a Marketing Specialist that are set out in ANSCO, and put to her that the duties set out in the Statement explaining the reasons for employing the nominee that she provided with the application fall well short of the duties listed in ANZSCO. Ms Chang said that she wants Mr Yang to do all of the duties referred to in ANZSCO for her business. After a break to consult her representative, she told the Tribunal that marketing staff are even more important to a small business than a large one, and claimed that ‘70% of [Mr Yang’s] duties’ would be consistent with the list in ANZSCO. She conceded that ‘some of his duties are below the level’, but she needed him to communicate with the clients for her.
The Tribunal agreed to the representative’s request for time to provide additional material to the Tribunal concerning the level of the position for which Mr Yang was nominated. A submission dated 22 April 2016 was received from the representative attaching information about the use of marketing specialists in small businesses, including online and print journals and websites, and stating:
The reasons why a Marketing Specialist is required
The importance of a Marketing Professional in a company is well recognized and has been published in many business journals and articles. As shown in Appendix 2, the employment trend for Marketing Professionals has risen by a rate of 33.5% over the past 5 years and is expected to grow strongly through 2017. …
The above researches do not support the view that marketing is only required for large entities. On the contrary, there is sufficient evidence that small companies also require marketing.
When "marketing positions in Australia" is searched in search engines on the websites, hundreds of relevant jobs will pop up regardless of the size of the company. Based on the above articles, any company will require marketing professionals to assist with their company growth.

The Tribunal is prepared to accept that the information provided by the representative establishes that small businesses benefit from marketing of their products. The Tribunal does not accept, however, that it necessary follows that a small business needs to employ a full time professional marketing specialist.
In particular, the Tribunal is not satisfied that the applicant business, which currently has no full time employees and had a total wages expense of $84,920.91 in the most recent financial year, has a genuine need to employ a full time professional marketing specialist on a salary of $54,000. As the Tribunal pointed out to the applicant’s representative at the hearing, the nominated occupation is a professional position, and a business of the size of the applicant would not need to employ Mr Yang to perform the duties outlined in ANZSCO.
The Tribunal found Ms Chang to be thorough and professional in her evidence, but does not accept her claim that Mr Yang would spend 70% of his time on the duties of a Marketing Specialist as identified in ANZSCO. The Tribunal is satisfied that given the size of the business, the duties outlined in the Statement explaining the reasons for employing the nominee that was provided to the Department with the application much more closely describe the actual duties Mr Yang would perform for the business.
Accordingly, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine, and the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Bruce Henry
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. …
(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:
…
(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 …
(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. …

[2016] AATA 3843

28 April 2016

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Immigration

Administrative Law

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Procedural Fairness