1603085 (Migration)

1603085 (Migration) [2016] AATA 3991 (15 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  A2Z Property Maintenance Pty Ltd
CASE NUMBER:  1603085
DIBP REFERENCE(S):  BCC2015/3236518
MEMBER:Jennifer Ciantar
DATE:15 June 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 15 June 2016 at 9:22am

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 8 March 2016 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 4 November 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 delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(10(f) because the delegate was not satisfied that the nominated position of customer service manager is genuine.
The applicant appeared before the Tribunal on 3 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Verma. The hearing was combined with the hearing conducted in regard to the refusal of the Subclass 457 visa application lodged by Mr Verma (1514956).
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 is satisfied that the applicant company has nominated an occupation under s.140GB(1)(b) (r.2.73(1A)(a)) and has identified the person proposed to work in the occupation as a proposed applicant for a Subclass 457 visa (r.2.73(1A)(b) and r.2.72(5) in relation to r.2.73(4A)(a)).
The Tribunal is satisfied the applicant has provided the name of the occupation, customer service manager, the corresponding ANZSCO code, and the location (Blacktown) at which the occupation will be carried out: r.272(8A) in relation to r.2.73(4A)(a).
The Tribunal finds that the applicant has made the application in accordance with the approved internet form and paid the fee prescribed at the time of application (r.2.73(3),(5)&(9)).
The Tribunal accepts the applicant is a standard business sponsor and lawfully operates a business in Australia. The Department’s records indicate that the applicant was approved as a standard business sponsor from 28 April 2015 to 28 April 2020.
On the basis of the nomination form the Tribunal is satisfied that the nominating employer has provided the necessary certifications required by r.2.72(10)(e) (regarding tasks, qualifications and experience).
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.
Based on the Department “Sponsorship Approval Notice” and Department records, the Tribunal accepts the applicant is a standard business sponsor and meets r. 2.72(4).
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 proposed visa holder is identified in the nomination application and r.2.72(5) is 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.
In this case, by reference to ‘movement records’, the proposed visa holder was not and is not the holder of a Subclass 457 visa and therefore the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant indicated in the nomination applicant that the nominated occupation was that of Customer Service Manager (ANZSCO 149212). The application includes the location at which the occupation will be carried out.
For these reasons the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an 'associated person'.
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 Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation and its corresponding ANZSCO code are relevantly specified in IMMI 15/092.
The instrument does not require that the nomination be supported in writing by a specified organisation.
For these reasons the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. 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 09/113: r.2.72(10)(AB).
The annual earnings specified are AUD 180000. The visa application specifies a salary of $56,000 a year and the contract specifies $1076.92 per week, exclusive of superannuation, which amounts to $55,962.40 exclusive of superannuation. The applicant has submitted that in determining the salary he relied on the Payscale Human Capital Report which indicated that the median salary in Australia for a Customer Service Manager is $56,053. The applicant also identified and provided 3 job advertisements for customer service managers, with comparative information.
The delegate had concerns about the size of the salary taking into account the managerial duties of the position. However, the Tribunal has considered the information provided and on the evidence, the Tribunal is satisfied that the earnings, and therefore, the proposed terms and conditions of employment, for the nominee are no less favourable than the earnings and terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing equivalent work at the same location; r.2.72(10)(c) is therefore satisfied.
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 $53,900.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB). The earnings specified are $250,000.
Based on evidence discussed and findings above, and again being mindful of the general nature of the salary estimates available, the Tribunal finds that 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 TSMIT, and r.2.72(10)(cc) is satisfied.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.
The Tribunal accepts based on the material submitted by the applicant that it lawfully carries on a business in Australia. Each of the relevant required certifications has been made in the nomination application and 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 was not satisfied that the size, structure and operations of the business indicated that the business was operating at a level that would support the claim that the nominated position was genuine. The delegate was also of the view that the remuneration was modest and the delegate was not satisfied that the nominee would be performing all the duties of a customer service manager as set out in ANZSCO.
The Tribunal notes that in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091, the Court considered the meaning of this subparagraph, as follows:
… What is required by sub-reg 2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation.
More recently, the Federal Circuit Court in Khan v Minister for Immigration [2016] FCCA 333 considered what is required by cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations, which is worded identically to r.2.72(10)(f) in that it requires that the position associated with the nominated occupation is genuine. The Court, having referred to the judgment in Cargo First, held that:
… When considering whether the criterion specified in cl.457.223(4)(d)(ii) of Schedule 2 is satisfied, questions along the following lines may need to be addressed:
a) What is the occupation that has been nominated…?
b) How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?
c) What are the tasks the applicant claims he or she has been employed or will be employed to perform?
d) Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO?
e) If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks he or she will be engaged to perform?
The ANZSCO entry for the nominated occupation of Customer Service Manager (CSM) gives the tasks for a call or contact centre and customer service manager as follows:
Tasks Include:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre
149212 CUSTOMER SERVICE MANAGER
Alternative Titles:
Client Service Manager
Service Manager

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
The job description provided for the nominated position is as follows:
·Develop and implement policies and programs to ensure that all customer service needs are addressed promptly and completely by field client supervisors;
·Communicate results, assessments and feedback to field client supervisors regarding their performance at delivering customer service to our clients;
·Manage customer service work of field client supervisors and provide feedback on the work of field client supervisors to company management;
·Oversee and assess the customer service work of field client supervisors including obtaining feedback from clients on field client supervisors and the overall level of services provided to the client to ensure maintenance of a positive client relationship;
·Work with management to address management goals regarding customer service, ensure those goals are incorporated efficiently and completely in the work of field client supervisors and ensure those goals result in an optimal experience for our clients.
In submissions and oral evidence provided to the Department and to the Tribunal the applicant stated that he established the business four or five years ago. Initially, the turnover was about $50,000 per annum but now it is about $1.3 million per annum. The business employs three full-time staff and some part-time staff but also makes use of external workers employed through a labour hire company, AMP. The business provides cleaning and maintenance services to a range of corporate clients including McDonald’s, Anytime Fitness and strata management services. The business provides cleaning for about 10 McDonald’s stores and this work comprises 45% or 50% of the business.
AMP provides 4 teams of cleaners; each team has three or four workers and a supervisor. The nominee, Mr Verma, is responsible for ensuring that the work performed by the AMP teams is at the required standard. He manages the contracted field staff supervisors and they and their teams provide the direct service to the clients. Customer satisfaction is vital to the continuation and growth of the business. Mr Verma speaks to the supervisors and to store managers every day or every second day. He obtains feedback from the store managers, which he passes on to supervisors and he deals with complaints. There are regular health inspections and as McDonald’s has a high public profile, the hygiene standards are very high and include strict rules about using environmentally friendly products. McDonald’s stores have up to 30,000 customers per week each. The cleaning can take one team 4 to 6 hours and is usually conducted overnight.
Mr Verma ensures the standards and policies are implemented. When asked if Mr Verma personally prepares any written policies, the applicant stated that he does prepare scopes of work which are in simple language for the cleaning teams and in more sophisticated language for managers. The applicant provided some examples of the scopes of work and associated questionnaires which the supervisors of the cleaning teams use. It was submitted that supervising the work undertaken at McDonald’s and also at the Anytime Fitness studio occupies the bulk of Mr Verma’s time. The McDonald’s business generates about $100,000 per month for the business.

The applicant stated that Mr Verma does have the power to issue warnings and even to dismiss unsatisfactory workers including contract workers. He did so last year as there was the need to dismiss one unsatisfactory work at that time. Mr Verma can also advise AMP that certain workers are unsatisfactory and are not to be employed for the work undertaken by the business.
The Tribunal discussed Mr Verma’s statement of duties with the applicant and also with Mr Verma. The applicant stated that Mr Verma is the first customer service manager that he has employed. He hopes to obtain contracts for further McDonald’s stores and he would then require a second customer service manager.
Apart from Mr Verma, the applicant also employs a job coordinator who is responsible for the maintenance arm of the business but who also trains the cleaning staff and decides which team goes to which location, and at what time. Mr Verma stated that he would visit McDonald’s stores perhaps every second day in order to meet with the store manager and obtain feedback, which he then passes on to supervisors with whom he is in contact most days. The supervisors are trained by AMP but Mr Verma monitors their performance. Mr Verma stated that since last year, the supervisors have been a relatively stable workforce but cleaners tend to come and go, as the work is often unpleasant and frequently demanding. Mr Verma also stated that he tends to give oral instructions to supervisors depending upon the feedback he has received from store managers. Store managers communicate with him via email or in person.
The applicant stated that he also meets regularly with Mr Verma to review the business plan and their progress in meeting its goals. He has not previously been a standard business sponsor.
The Tribunal has considered the evidence provided and accepts that the nominated position involves more than managing 4 teams of over 15 staff to ensure that they perform their duties to the required standard. The teams each have a supervisor and the applicant also employs a jobs coordinator who trains and rosters the 4 teams. The Tribunal accepts that the nominee operates at a higher skill level than the team supervisors or job coordinator. The Tribunal accepts that the nominee liaises on a daily basis with the managers of the client businesses to monitor the performance of the teams and to obtain feedback, which he then provides to the teams and uses to develop procedures and practices to improve the service provided.
The Tribunal is satisfied that the nominated position is a managerial position that involves developing and reviewing programs and procedures concerning customer relations and goods and services provided, providing direction and feedback to team members, managing, motivating and developing staff providing customer services, planning and implementing after-sales services to follow up customer satisfaction, ensuring the performance of the service is at the required standard, and modifying and improving services provided, liaising within the organisation, and with the labour hire company and with customers to identify and respond to customer expectations.
Based on the above findings, the Tribunal is satisfied that the position is substantially equivalent to the ANZSCO definition of the nominated occupation and the position takes in a significant majority of the ANZSCO-indicated tasks as has been certified.
Therefore the position associated with the nominated occupation is genuine and r.2.72(10)(f) is 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 relevant instrument.
The applicant has submitted a copy of the signed employment contract setting out the main terms and conditions of employment.
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). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
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.
By IMMI 13/137 occupations at ANZSCO skill level 1 and 2 are specified for the purposes of s.140GBC(4).
The nominated occupation is at ANZSCO skill level 2.
The ANZSCO definition indicates that an incumbent of the occupation would normally be required to hold an AQF bachelor’s degree, advanced diploma or diploma, or at least three years of relevant experience.
The Tribunal accepts as is indicated in the nomination application, that a relevant diploma is required for the position, and that therefore s.140GBC operates to render the applicant exempt from labour market testing.
For these reasons, 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.
Jennifer Ciantar
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 3991

15 June 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness