1512514 (Migration)

1512514 (Migration) [2016] AATA 4753 (5 December 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sterling Global Property Group Pty Ltd ATF Sterling Global Property Group Unit Trust
CASE NUMBER:  1512514
DIBP REFERENCE(S):  BCC2015/2382280
MEMBER:Bruce Henry
DATE:5 December 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 05 December 2016 at 4:21pm

CATCHWORDS
Migration – Employer Nomination – Subclass 457 – Liaison Officer – Operational requirement – Business financial capacity – Genuine position – Development projects – Individual employment contract – Decision under review set aside
LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r.2.72(10)(f)
Fair Work Act 2009

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 September 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 18 August 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 paragraph 2.72(10)(f) of the Regulations because the nominated position of Liaison Officer, ANZSCO Code 224912, was not a position that was necessary to the operations of the business.
Mr Neil Qiqi Li appeared before the Tribunal on behalf of the applicant on 12 October 2016 to give evidence and present arguments in support of the application. 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 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.
On the basis of documents on the departmental file, the Tribunal is satisfied that:
·The applicant has nominated the occupation Liaison Officer, ANZSCO Code 224912, for the purposes of s.140GB(1)(b): r.2.73(1A)(a);
·The applicant identified in the nomination a proposed applicant for a subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b);
·The nomination was made using the approved form and fee: r.2.73(2), (3), (5) & (9); and
·The applicant identified the nominee in the nomination: r.2.73(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 has provided to the Tribunal a copy of a letter from the Department dated 18 August 2015 approving the company as a standard business sponsor for five years from the date of the letter.
Accordingly, the Tribunal finds that 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.
A copy of the application for approval of the nomination appears on the file. It identifies Mr Xi Yantan, who does not currently hold a subclass 457 visa, as the nominee for the position of Liaison Officer, ANZSCO Code 224912.
The Tribunal is satisfied that the requirements of r.2.72(5) are met.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one; and
·the location(s) at which the nominated occupation is to be carried out.
As indicated above, the nomination identifies the position Liaison Officer, ANZSCO Code 224912. This occupation appears on the relevant instrument, which is IMMI 16/059[1].
[1] F2016L00800, Specification of Occupations, a Person or Body, a Country or Countries 2016/059 (Regulation 1.03, subregulations 1.15I(1) and 2.26B(1), paragraphs 2.72(10)(aa) and 2.72I(5)(ba),sub-subparagraph 5.19(4)(h)(i)(A), Item 4(a) of the table in subitem 1137(4), Item 4(a) of the table in subitem 1138(4) and Item 4(a) of the table in subitem 1230(4), paragraph 1229(3)(k) and paragraph 186.234(2)(a)), issued 16 May 2016 with effect from 1 July 2016.
The nomination also identifies the location at which the nominee will be employed as an address in central Melbourne.
Accordingly, the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal that such adverse information exists in this case, and the requirements of r.2.72(9) are therefore 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.
As the Tribunal has found above, the nomination identifies the position Liaison Officer, ANZSCO Code 224912, which occupation appears on the relevant instrument. Accordingly, the requirements of r.2.72(10)(aa) are met.
As there is no requirement in this case for the nomination to be supported by a specified organisation, 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 IMMI09/113[2]: r.2.72(10AA).
[2] F2009L03515, Specification of method for determining terms and conditions of employment that would be provided to an Australian Citizen or a Permanent resident to perform equivalent work in the same workplace at the same location (subregulation 2.72(10AA)), commenced 14 September 2009
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI13/028[3]: r.2.72(10)(AB). The earning amount specified in the instrument is $250,000. As the nomination lodged by the applicant for Mr Xi specifies a salary of $54,000, this exemption does not apply.
[3] F2013L01231, Specification of Income Threshold and Annual Earnings (Paragraphs 2.72(10)(cc) and 2.79(1A)(b) and subregulation 2.72(10AB)), commenced 1 July 2013, revoked 18 April 2015, recommenced following disallowance of IMMI15/050 by the Senate on 16 June 2015
IMMI09/113 provides in paragraph 2(1) of Schedule A that if no applicable industrial agreement or award applies to the work being performed in the nominated position, ‘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 must be determined with regard to relevant information’. Relevant information is defined in paragraph 1 of Schedule A:
relevant information may include, but is not limited to:
(a) information in relation to statutory minimum entitlements, fair work instruments, state industrial instruments and transitional instruments that apply to Australian citizens or Australian permanent residents in similar workplaces.
(b) local knowledge and evidence of appropriate terms and conditions of employment including information from:
(i) employer associations; and
(ii) unions.
(c) broader labour market data including:
(i) Australian Bureau of Statistics Employee Earnings and Hours Survey (see Australian Government’s Job Outlook (see remuneration surveys; and
(iv) job vacancy advertisements
In the application for approval of the nomination, the applicant indicated nominee was to be employed under the terms of an individual employment contract, and that there was no relevant industrial award or agreement. The applicant provided a copy of the employment agreement to the Tribunal together with a submission arguing that the salary proposed for the nominee met the market salary requirements of the relevant instrument. This submission was based on sample job advertisements for similar positions, which were also provided to the Tribunal.
On the basis of this evidence and the submission provided by the applicant the Tribunal is satisfied that 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 IMMI13/028. That instrument specifies in paragraph 2 that for the purposes of paragraph 2.72(10)(cc) of the Regulations, the temporary skilled migration income threshold is AUD 53,900.
The evidence and submissions provided by the applicant to the Tribunal which are referred to above indicate that the average median salary for persons performing similar work to that proposed for the nominee is AUD 55,000. The Tribunal is satisfied that this amount is greater than the specified TSMIT. As the Tribunal is also satisfied on the evidence referred to above that the nominee’s annual earnings are greater than the specified TSMIT, the Tribunal therefore finds 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;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business of the applicant; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The applicant has provided the Tribunal with copies of material submitted to the Department in relation to this requirement together with an updated certification dated 17 October 2016. For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The delegate provided the following reasons for finding that this criterion was not satisfied in the decision record, a copy of which the applicant has provided to the Tribunal:
Assessment against Regulation 2.72(10)(f)
Regulation 2.72(10)(f) states that the position associated with the nominated occupation is genuine.
On assessment of all the information supplied by the applicant, I am satisfied that the nominated position of Liaison Officer 224912 does not appear to be a position necessary to the operations of the business.
According to the Australian and New Zealand Standard Classification of Occupations (ANZSCO), a Liaison Officer is involved in the establishment and facilitation of communication between different community groups, organisations and governments. I note that the duties and responsibilities of the position as described by the applicant include tasks that are outside the scope of a Liaison Officer as described in ANZSCO, such as communicating effectively with property agents to co-ordinate marketing events for the company and general client relationship management.
I have considered all the information provided with the application but find there is insufficient evidence in the documentation to support a finding that there is a genuine business need for a Liaison Officer 224912. I have formed this view after examining the financial documents, and after consideration of the information provided pertaining to the operating environment, current practices, commitments, staffing composition, and evidence to support claims regarding projected growth.
I have considered all the information provided, and given the size, scope and nature of the business as evidenced by the information provided, I am not satisfied that the nature of the business is sufficiently large and complex enough to demonstrate the need for a dedicated Liaison Officer 224912 performing the duties as defined by ANZSCO on a full time basis.
Consequently, as the position is not necessary to the operations of the business of the applicant, I do not consider the position associated with the nominated occupation to be genuine.
Therefore, I am not satisfied that paragraph 2.72(10)(f) has been met.
During the course of the review the applicant provided further information and submissions to the Tribunal in relation to this issue. Mr Li also gave evidence on these matters to the Tribunal at the hearing.
Mr Li told the Tribunal that the applicant was involved with major development projects in Melbourne including the redevelopment of Commonwealth buildings in the centre of the city. The Tribunal pointed out to Mr Li that very little documentation had been provided to support the claims as to the nature of the applicant’s business, and that in the absence of this information it was difficult for the Tribunal to assess the need for the nominated position. Mr Li indicated that such documentation was readily available and apologised for the failure to provide the documentation to the Tribunal prior to the hearing. A substantial amount of documentation was subsequently provided.
The documentary evidence provided to the Tribunal in relation to this matter included financial information relating to the applicant and to its development projects in central Melbourne and elsewhere. The applicant also provided detailed submissions and supporting documents arguing that the nominated position was essential to the conduct of its business, including an organisational chart demonstrating the role of the nominated position. The material provided by the applicant establishes to the satisfaction of the Tribunal that the nominee provides essential support to the senior executives of the company in maintaining and developing its business in Melbourne.
For these reasons the Tribunal is satisfied that the applicant has demonstrated a genuine need for the nominated position and finds that 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 a relevant instrument.
As noted above the applicant has given a copy of the employment contract for the nominee to the Tribunal, and the requirements of r.2.72(10)(h) are therefore 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.
IMMI13/137[4], issued by the Minister for the purposes of s.140GBC of the Act, specifies all occupations classified in the ANZSCO as Skill Level 1 as exempt occupations. The Tribunal is satisfied on the evidence provided that the nominated position requires a bachelor degree, and thus meets the requirement for Skill Level 1 occupations in ANZSCO.
[4] F2013L01952, Specification of occupations exempt from labour market testing (Section 140GBC), commenced 23 January 2013
Accordingly, the Tribunal is satisfied that the labour market testing requirements in s.140GBA are not applicable.
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.
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.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)    if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)    if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)     the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)    if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)    unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)     the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)    the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2016] AATA 4753

5 December 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction