1607794 (Migration) - [2016] AATA 4531

1607794 (Migration) [2016] AATA 4531 (24 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SHANDONG SHUNTIAN LAW FIRM
CASE NUMBER:  1607794
DIBP REFERENCE(S):  BCC2015/4058315, BCC2015/4106502
MEMBER:Katie Malyon
DATE:24 October 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 24 October 2016 at 4:26pm

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 18 May 2016 to refuse to approve a nomination made by overseas business sponsor Shandong Shuntian Law Firm (Shandong Law) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
Shandong Law applied for approval on 30 December 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 2.72(12) prescribe the criteria that must be satisfied for the Minister to approve a nomination. 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 of the Act.
The delegate decided not to approve Shandong Law ‘s nomination for the occupation of Human Resources Manager on the basis that it did not satisfy 2.72(10)(c) of the Regulations because it did not demonstrate that the nominee will receive no less favourable terms and conditions than would be provided to an Australian citizen or permanent resident. As this criteria was not met, the delegate did not consider remaining criteria in r.2.72 of the Regulations.
The Managing Partner of Shandong Law, Mr Pifeng Liu, appeared before the Tribunal by teleconference on 24 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Dandan Liu, who is also a Partner with Shandong Law. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 Shandong Law meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 of the Regulations and, for nomination applications made from 23 November 2013, s.140GBA of the Act have been met: s.140GB(2) of the Act.
In a statement lodged with the Tribunal prior to the hearing, Mr Liu informed the Tribunal that Shandong Law is the first Chinese law firm to establish a branch office in Victoria. Shandong Law plans to have 3 Australian-registered foreign lawyers work in its Melbourne office specialising in international trade, mergers and acquisitions as well as other areas of Chinese law. In due course, other staff would be employed.
Also lodged with the Tribunal prior to the hearing was a Supplementary Agreement made between Shandong Law and Ms Liu confirming her salary had been increased from $5,000 per month to $8,000 per month effective from 25 May 2016, that is, she will receive an annual salary of $96,000. An updated Job Outlook for Solicitors was also lodged and indicates that weekly earnings for a Solicitor are $1,600: this is equivalent to $83,200 per annum. As noted in the delegate’s decision, a copy of which was provided to the Tribunal together with the application for review, the annual salary proposed to be offered to Ms Liu in the nomination lodged with the Department for the position of Human Resources Manager was $60,000 per annum. It was on this basis that the delegate found Shandong Law had not demonstrated that the terms and conditions of employment of the nominee will be no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident for performing equivalent work at the same location and, accordingly, Shandong Law did not satisfy r. 2.72(10)(c) of the Regulations.
Based on the Tribunal’s review of the job description for the nominee’s position as lodged with the Department and evidence provided to the Tribunal prior to the hearing that the nominee’s salary has been determined by reference to the salary offered to a Solicitor - rather than the nominated occupation of Human Resource Manager - the Tribunal focused its attention on whether Shandong Law has identified a genuine need to employ a person in the nominated occupation of Human Resource Manager.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Tribunal observed at the hearing that all sponsors are required, in their nomination applications, to certify that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the Australian New Zealand Standard Classification of Occupations (ANZSCO) or instrument in writing: r.2.72(10)(e)(i) of the Regulations. It also noted that the ‘position’ refers to the job and the tasks proposed to be undertaken in the nominating business by the nominee, while the term ‘nominated occupation’ refers to the nominated occupation as described in ANZSCO.
It was pointed out by the Tribunal that, in relation to the analogously worded visa criterion in cl.457.223(4)(d)(ii) of Schedule 2 of the Regulations, the Federal Circuit Court of Australia has recently indicated[1] that the following 5 questions may be relevant:
a)    What is the occupation that has been nominated in relation to the applicant?
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 the answer to the last question is ‘yes’, 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?
[1] Khan v MIBP [2016] FCCA 333, Manousaridis J at [14]
The Tribunal considered Shandong Law’s nomination having regard to these questions.
What is the occupation that has been nominated in relation to the applicant?
Regulation 2.72(8A) requires a sponsor to provide the name of the occupation and the corresponding 6-digit ANZSCO code and the location(s) at which the nominated occupation is to be carried out. Shandong Law nominated the occupation of Human Resource Manager ANZSCO132311 in respect of nominee Ms Liu for its new Melbourne branch office.
How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?
The description of the for the nominated occupation, and the tasks associated with it, are described in ANZSCO[2] as follows:
[2] RESOURCE MANAGERS plan, organise, direct, control and coordinate the human resource and workplace relations activities within organisations.
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:
odetermining, implementing, monitoring, reviewing and evaluating human resource management strategies, policies and plans to meet business needs
oadvising and assisting other Managers in applying sound recruitment and selection practices, and appropriate induction, training and development programs
odeveloping and implementing performance management systems to plan, appraise and improve individual and team performance
orepresenting the organisation in negotiations with unions and employees to determine remuneration and other conditions of employment
odeveloping and implementing occupational health and safety programs and equal employment opportunity programs, and ensuring compliance with related statutory requirements
ooverseeing the application of redundancy and other employee retrenchment policies
omonitoring employment costs and productivity levels
omay train and advise other Managers in personnel and workplace relations matters
Occupation:
132311 Human Resource Manager

132311 HUMAN RESOURCE MANAGER

Plans, organises, directs, controls and coordinates the human resource and workplace relations activities within an organisation.
Skill Level: 1
Specialisations:
Kaiwhakahaere Tumu (NZ)
Occupational Health and Safety Manager
Training and Development Manager
Workplace Relations Manager
What are the tasks the applicant claims she will be employed to perform?
The tasks to be undertaken by nominee Ms Liu are described in the Job Description accompanying Shandong Law’s nomination application. The job description provides as follows.
Duty Statement for the Nominated Position of
Melbourne Office of Shandong Shuntian Law Firm
Job Title: HR and Executive Officer

Duties of the HR and Executive Officer
1. Business duties:
·Doing work, or transacting business, concerning the law of China
·Providing legal services (including appearances) in relation to arbitration proceedings of a client kind prescribed under the Legal Profession Regulations 2005 (‘the Regulations’)
·Providing legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the law of China is essential
·Providing legal services for conciliation, mediation and other firms of consensual dispute resolution of a kind prescribed under the regulations
2. Management Duties:
·Responsible for recruitment of office staff
·Responsible for insurance and employment contract (sic) for office staff
·Responsible for registration of business and lawyers’ income
·Management of the seals and bookings of the Office
·Responsible for verifying cash revenue and expenditure
·Responsible for staff wages and tax deduction (sic)
·Reporting weekly to the general manager on financial revenue and expenditures (sic) information of the office
·Responsible for organizing and keeping personnel and business records
·Responsible for lawyers’ registration and renewal
·Responsible for purchasing, inventorying (sic), keeping, and delivering of office suppliers
·Responsible for maintenance of telephones, computers and photocopiers, etc
·Responsible for reception of clients and sanitary condition of the Office
·Responsible for organisation of meetings, receptions, and other activities of the Office
·Formulating and implementing advertisement plan of the Office
·Responsible for the services and clients support
·Execution of other works arranged by the general manager.
Clearly, while some of these tasks outlined above relate to the delivery of legal services to clients others are more appropriately categorised as managerial tasks.
Are the tasks the applicant claims she 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?
The Tribunal notes that the Department’s Procedures Advice Manual (PAM3) provides the following guidance on assessing whether the duties of a nominated occupation correspond
to those of an ANZSCO occupation at Skill Level 1 to 3:
Assessment of the position
Assessment as to whether the nominated position can be approved, involves comparing the tasks of the nominated position and corresponding qualifications/experience (as detailed in the nomination application) against the tasks/qualifications for that or similar occupations in the ANZSCO Dictionary.
If the functions of the nominated position consist of tasks across more than one ANZSCO occupation, officers will need to determine which ANZSCO occupation most closely aligns with the nominated position.
For example, if the tasks of the nominated position involve:
·completing architects’ concepts by preparing drawings and plans (312111 Architectural Draftsperson) for 40% of the time and
·preparing and delivering estimates and cost plans for construction (312114 Construction Estimator) for 30% of the time and
·supervising construction sites (312112 Building Associate) for the remainder
the occupation would logically be classified as that of an Architectural Draftsperson, given that the predominant tasks relate to this occupation.
…
Once the tasks have been compared against the ANZSCO framework, a determination as to whether the nominated position is approvable is to be made. If tasks as outlined do not correlate to the occupation provided in the nomination, the nomination should be refused.
In exercising its power on review the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal.[3] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or, in the case of the exercise of a discretionary power, the preferable decision.[4] The Tribunal has found the PAM3 guidance on assessing whether the duties of the nominated occupation correspond to other ANZSCO occupations to be helpful in determining whether the tasks Ms Liu claims she will be employed to perform (in the nominated position of Human Resources Manager) are equivalent or substantially equivalent to the tasks associated with that nominated occupation as specified by ANZSCO.
[3] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380
[4] See Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jaocobson JJ) at [34]
Prior to the hearing, the Tribunal invited Shandong Law to confirm the time anticipated to be devoted by the nominee to each of the 2 major tasks and the subtasks outlined in the Duty Statement for the nominated position lodged with the Department. In a signed Statement, Managing Partner Mr Liu informed the Tribunal that the nominee will spend 60% of her time providing legal services to clients: the remaining 40% of her time will be spent on management tasks of which (only) 5% of her time would be devoted to human resource functions, 10% to finance and accounting functions, 5% to general administration and the remaining 20% of her time would be devoted to business development and marketing initiatives. Both Mr Liu and Ms Liu confirmed this for the Tribunal at the hearing. Mr Liu explained that Shandong Law’s 3 partners who it is planned will be working out of the Melbourne branch office will share responsibility for management duties. He told the Tribunal that Shandong Law ‘does not have a special need to hire a Human Resource Manager’.
Having regard to evidence provided, the Tribunal finds that the tasks Ms Liu would be employed to perform in the position of Human Resource Manager and as set out in the Job Descritp
Description referred to above are not equivalent, or substantially equivalent, to the occupation of Human Resources Manager as specified by ANZSCO. Only 5% of her time would be devoted to the functions and tasks of a Human Resource Manager as specified in ANZSCO. Because this fourth question has been answered in the negative it has not been necessary to consider the fifth and final question referred to above. In the circumstances, the Tribunal finds that the position associated with the nominated occupation is not genuine.
Ms Liu has provided the Tribunal with a detailed curriculum vitae confirming both her undergraduate and postgraduate studies in law in China (as well as business administration in USA) and her admission to both the Shandong Lawyers Association and Bar Association of the People’s Republic of China. She also provided her Certificate of Registration of Foreign Lawyer for the 2016- 2017 Practising Year issued by the Victorian Legal Services Board. The Certificate notes that Ms Liu is authorised to practice the law of China in Victoria. The Tribunal discussed with Mr Liu and Ms Liu the appropriateness of lodging a new nomination for the nominated occupation of Solicitor ANZSCO 271311. In brief, ANZSCO states that solicitors provide legal advice, prepare and draft legal documents, and conduct negotiations on behalf of clients on matters associated with the law. In Ms Liu’s case, and consistent with the Certificate of Registration of Foreign Lawyer for the 2016-2017 Practising Year issued by the Victorian Legal Services Board, this would enable her to provide legal advice, prepare and draft legal documents, and conduct negotiations on behalf of clients on matters associated with Chinese law.
The Tribunal are discussed with the parties the limitations on the scope of practice by Australian-registered foreign lawyers. The permissible services have been determined by the Law Council of Australia and adopted by Victoria and New South Wales. The legal services that may be provided by foreign registered lawyers in Victoria include:
·doing work, or transacting business, concerning the law of a foreign country where the lawyer is registered by the foreign registration authority for the country;
·legal services in relation to arbitration proceedings or conciliation, mediation and other forms of consensual dispute resolution; and,
·legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of the country in which the foreign lawyer is entitled to practice is considered by the Victorian Legal Services Board to be essential.[5]
[5] Full details in relation to foreign lawyers and the practice of foreign law in Australia are set out on the respective websites of the capital Council of Australia and the Victorian Legal Services board and Commissioner:
The Tribunal also discussed with Ms Liu and Mr Liu provisions which preclude Australian-registered foreign lawyers from practising Australian law in Australia. It is noted that provisions relating to trust money and trust accounts apply to Australian-registered foreign lawyers in the same way as they apply to Australian legal practitioners. The Tribunal also notes Australian-registered foreign lawyers are subject to complaint and disciplinary procedures in Chapter 5 of the Uniform Law as set out in Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) and, accordingly, are subject to the same professional, ethical and practice standards as those which apply to Australian legal practitioners practising Australian law.
Both Ms Liu and Mr Liu confirmed that, when Shandong Law lodged its nomination application in respect of the position of Human Resource Manager for nominee Ms Liu in late 2015, no immigration advice from an immigration lawyer/registered migration agent had been taken and, furthermore, they did not then fully appreciate the nature of the legal services that can be provided by an Australian-registered foreign lawyer. They were both aware that Mr Liu could not represent clients in a court and would need to refer such matters to a local law firm or brief a barrister. Shandong Law intends to lodge a new nomination application with the Department nominating the position of Solicitor ANZSCO 271311 in respect of Ms Liu.

For the reasons given above the requirements of r.2.72(10)(f) of the Regulations are not met. Because the Tribunal is not satisfied that Shandong Law meets the requirements of r.2.72(10)(f) of the Regulations it has not been necessary for the Tribunal to consider the remaining criteria for approval of the nomination.
On the basis of the 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.
Katie Malyon

Member
ATTACHMENT
Extracts from the Migration Regulations 1994

2.72 Criteria for approval of nomination — Subclass 457 (Temporary Work (Skilled)) visa
(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.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.

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Citations

1607794 (Migration) [2016] AATA 4531

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Khan v Minister for Immigration [2016] FCCA 333

Qiao v MIAC [2008] FMCA 380

Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20