Acecorp Security Australia Pty Ltd (Migration)
[2021] AATA 1386
•30 April 2021
Acecorp Security Australia Pty Ltd (Migration) [2021] AATA 1386 (30 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Acecorp Security Australia Pty Ltd
CASE NUMBER: 1837269
HOME AFFAIRS REFERENCE(S): BCC2018/710449
MEMBER:Wan Shum
DATE:30 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 30 April 2021 at 1:38pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – nominated occupation does not correspond to an occupation specified by minister – limited service restaurant – scope of applicant’s operations and nominee’s tasks – plans for expansion of operations – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(aa), 2.73CASE
Beer and Burger Pty Ltd [2018] AATA 122STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 December 2018 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 of the position of Café or Restaurant Manager on 12 February 2018. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa) because the nominated occupation did not correspond to an occupation specified by the Minister. The delegate concluded that the occupation of Café or Restaurant Manager was not applicable as the position would be in a limited service café/restaurant.
The applicant was represented in relation to the review by a registered migration agent, who is also representing the nominee.
The applicant was invited to appear before the Tribunal and Mr Phelan appeared on behalf of the applicant as the owner, on 10 March 2021 to give evidence and present arguments by videoconference using MS Teams. The Tribunal also received oral evidence from Ms Tulsi Devi Surnam. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
When the application was made, the applicant operated a ‘Nutrition Station’ which according to the information provided was a franchise of a ‘healthy’ café, using “nu” as the short catchphrase in marketing. From late 2020, it appears that the Nutrition Station was no longer operating from that site and had been transformed into the Leaf & Grind Café. According to the ABN Lookup register, the applicant had registered 3 different business names from August 2020, being Leaf and Grind Café, Nu Nu Café and Grill and Two Chicks and Grill. From the photographs of the external site which appears from a search on the Google search engine, the only change has been placing a sign with the Leaf & Grind logo over the “nu” in two locations in the shopfront and covering the words “nutrition station” on the backwall behind the counter underneath a motivating phrase attributed to “#dietdoctor”. It is claimed that the nominee will remain in the same position of Café/Restaurant Manager. According to the position description provided, the manager will ensure that the restaurant operates efficiently and profitably while maintaining their reputation and ethos. It describes the manager as being “responsible for the business performance of Dining, as well as maintaining high standards of food, service, and health and safety. They will support the Owner, work with no supervision and manage staff. They will train wait-staff, kitchen staff in a polite and professional manner, with ultimate goal to maximise business profits and provide exceptional customer service.”
According to the applicable instrument in this case, IMMI 18/004, an inapplicability condition applies for the occupation of Café or Restaurant Manager. This occupation is inapplicable where the position is in a limited service restaurant, which means that the nominated position will not correspond to an occupation specified by the Minister if the position is located in a limited service restaurant. The definition of “limited service restaurant’ (refer s 4 of IMMI 18/004) includes the following:
(a) a fast food or takeaway food service;
(b) a fast casual restaurant;
(c) a drinking establishment that offers only a limited food service;
(d) a limited service cafe, including a coffee shop or mall cafe;
(e) a limited service pizza restaurant.
The delegate considered the menu and formed the opinion that it was limited and concluded that the occupation of Café or Restaurant Manager was not applicable as the position would be in a limited service café/restaurant.
Prior to the hearing, the Tribunal received submissions addressing the issue of whether the business is a limited service restaurant or a full service restaurant. The representative referred to a decision of the Tribunal (differently constituted) Beer and Burger Pty Ltd [2018] AATA 122 in which the nomination was approved on review. It was submitted that there were many similarities presented in that case to that of the applicant’s. In particular, it was submitted that both Leaf and Grind and Beer and Burger have: commercial kitchens with significant food storage facilities - oven, deep fryer, grill, reach in cooler, upright and walk in freezer, sauté pans; and that the business is marketed to the public via Instagram. It was submitted that: the business is mainly engaged in providing food serving services for consumption on the premises, even if take away services are available which has been a recent note due to COVID-19 and restrictions; meals are made on-site from raw ingredients, portion size may vary depending on the cut/produce size available, involving substantial preparation (for example, peeling, chopping, de-boning, grating), seasoning and cooking - using a range of equipment and techniques depending on the nature and size of the produce that is being prepared; comprehensive menu is available which incorporates a broader range of ingredients that are delivered fresh to the premises; table service; customers pay after eating OR due to COVID- can pay, dine and after leave with minimal contact while seated; menu caters for special dietary requirements - nut allergies, vegan, vegetarian; there is a focus on organic and specialty ingredients that are prepared onsite which were said to reflect ‘gourmet products’, so the menu prices are higher than would be expected at a takeaway establishment.
The submissions also referred to two other decisions of the Tribunal (differently constituted) which were not approved: Envylicious and Bijayalaxmi. The Tribunal has considered the decisions, but is not bound by the findings in those matters. It notes that the submissions referred to the Tribunal in that matter concluding that the former business Envylicious “only served breakfast and lunch” but stated that this is not the case with the applicant’s café where a full days menu is on offer. Based on the opening hours of the applicant’s café, it appears to the Tribunal only to be open during breakfast and lunch, as the opening hours were given as 9am to 4pm five days of the week, with extended trading hours only on Thursday and Saturday, until 8 and 7pm respectively. This appears to be consistent with the shop centre opening hours.
During the hearing, the Tribunal discussed the nature of the business and Mr Phelan confirmed that the café operated in a shopping centre at the Hills Super Centre located at Castle Hill. Mr Phelan claimed that the majority of customers dine-in and that they provide table service and cook food from scratch. He claimed that aside from the Store Manager, Ms Surnam, they employ two chefs, one cook and one kitchenhand and two others that are “all rounders” which he explained meant that they waited on tables and could also operate the coffee machine. Mr Phelan confirmed that the opening hours were 9am to 4pm with extend trading hours for Thursday and Saturday which he said was consistent with the shopping centres trading hours on and claimed that there were hoping to extend hours on Friday. They claimed that the food was restaurant style quality and the Tribunal was given a number of photographs of dishes in submissions received prior to the hearing. The photographs under the heading ‘Photo book UPDATED Menu - photos Leaf and Grind 2020- 2021’, with the following descriptions: Beetroot Hommus & Crumbled Halloumi; Eggplant with poached eggs, cured salmon loaded with crunchy nuts, wasabi mayo and sesame; Beef Brisket Brioche with coleslaw and caramelised onions; Eggs Benedict Classic; Beef Pappardelle and poke/salad bowls. The Tribunal asked whether this was for the new café and Mr Phelan indicated he was not sure what photographs had been given to the Tribunal, but that the new dishes were on Instagram, which appear to show pictures of coffee, savoury toppings such as avocado, eggs and tomatoes on a slice of bread, colourful breakfast bowls, burgers, smoothies. Ms Surnam said that there were also daily specials. The Tribunal has not been given a copy of the actual menu of the new café. When asked about using the services of UberEats for delivery of food, Mr Phelan said that they had stopped doing this because of the expense and were looking at their own delivery system but this had not been implemented.
Ms Surnam said that orders are taken at the table and/or the front cash register and that customers were given a table number. The wait staff take the food to the table when ready using the table number to identify the customers, and food is served on crockery and drinks in glassware.
The Tribunal requested additional information to support their claims that it was not a limited service café or restaurant such as photographs of the dining space, a copy of the roster and payslips. The Tribunal also asked which Award applied to the business, and Mr Phelan said that the Restaurant Industry Award applied but was unable to confirm which classification applied to his employees. When asked whether the classification appeared on the payslips he replied in the affirmative but then said that a description appeared of their role/position. However, the payslips provided for Ms Surnam following the hearing did not outline her position. Furthermore, the submissions were based on the Hospitality Industry Award. No payslips were provided for the other employees despite being requested to do so.
The Tribunal also requested further evidence regarding the lease, which Mr Phelan said had ceased and claimed that they were in the middle of negotiations with the centre. He confirmed that the lease was rolling over month to month. Mr Phelan also said that it was a certainty that they would expand, and referred to plans to open a second shop at a different shopping centre in South West Sydney and said that his life partner also owns a restaurant and that is what they do. When asked for the floorplan for Leaf & Grind café, the Tribunal was informed that a copy had been provided to the Department, which appears to have been annotated with an indication of the seating capacity (60) but does not include a scale or descriptions.
The Tribunal allowed time after the hearing to provide further documentation. It received a copy of a lease for Shop 1A Oran Park Podium, Oran Park Drive, Oran Park NSW between Perich Property Pty Ltd as the lessor and Artisan Catering Pty Ltd which indicates that the lease is due to cease on 28 May 2021 with an option to renew for a further 3 years. While Oran Park is a suburb in South West Sydney, no information was provided to explain the connection between the applicant and either the lessor or lessee, and given the impending lease end date, whether the option to renew had been allowed. The names that appear on the lease are not those of Mr Phelan. A copy of interior design plans by VIVID Creations dated 16 March 2021 was provided with the project identified as Leaf and Grind Café/Restaurant and the location given as 1A Oran Park Town Centre. However, it is unclear whether the plans have been submitted and approved. As at the time of this decision, it does not appear that there is a café operating in Oran Park under the business name of Leaf & Grind.
In making an assessment as to whether the business is a limited service restaurant, the Tribunal has focused its assessment on the Leaf & Grind café which they claim is operating at Castle Hill, being the original location identified in the nomination application. The Tribunal has considered all the evidence which includes the submissions and supporting material provided as well as the oral evidence at the hearing. It was not, however, provided with the information requested regarding the lease at the Hills Centre so the Tribunal has some concerns about whether the business will continue to operate from this location and is not willing to accept that the proposed extended hours on Friday will eventuate on the limited information before it.
The Tribunal notes that aspects of the Department’s Policy contained in PAM3 ‘Factors supporting classification as a restaurant or café’[1] were referred to indirectly via a comparison with the applicant’s business and the Beer or Burger venue. Having regard to the factors set out in PAM3, there appears to be aspects of the applicant’s business which support classification as a restaurant or café and other aspects of the business which do not support such a classification, particularly under the descriptions of ‘fast casual restaurant’ and ‘limited service café, including a coffee shop or mall café’. The Tribunal has had regard to the factors set out in PAM3 but notes that it provides guidance only and the weight to various considerations that the Tribunal gives is a matter for itself.
[1] Policy – [Div2.11-Div.217] Temporary Work (Skilled) visa (subclass 457) -nominations
While the representative identified similarities between the applicant’s café and the Beer and Burgers business in the submission, the Tribunal notes that one of the main differences which it considers highly relevant is that Beer and Burgers was operating in a standalone premise. The representative also submitted that table bookings are not taken as the location is situated in busy Castle Hill and allows for shoppers who are visiting these factory outlets who have been shopping all day to be able to sit, relax and dine with waiters on hand to provide these services in a relaxed calm and healthy atmosphere. The submissions refer to customers ordering and paying at the main cashier, sitting at their table and waiting for food to be bought out to them on cutlery, plates, salt and pepper. It was highlighted in bold “no paper/disposable serving utensils and plates”. While the Tribunal accepts that the food is predominantly made onsite, from fresh ingredients, prepared in a small commercial grade kitchen and served on crockery for those that dine-in, it does not consider that the manner in which the food is served distinguishes the venue from a limited service café or mall café. This is because it would seem unusual for cafés with seating to serve customers on paper/disposable utensils and plates and that some fast food/takeaway outlets, particularly those located in food courts, serve food on crockery rather than paper and disposable utensils and plates. The Tribunal does not consider the Leaf & Grind Cafe to be a fast food/takeaway outlets not such a business, even though “grab and go meals” are available.
In terms of how the business is marketed, it was submitted that both the applicant’s business and Beer and Burgers are marketed using Instagram. The Tribunal does not consider that using the Instagram platform of itself for marketing of the business indicates that the business is not a limited service restaurant. It would seem to the Tribunal the relevance of the marketing of the business is to identify the type of service offered. In this case, it seems to the Tribunal that the business is marketed as a fast and convenient, healthy option.
The Tribunal notes that table bookings are not required or provided for, and thus not taken for customers who choose to dine-in which would be common with limited service cafes. It was not provided with a recent menu and thus does not have prices for the food and drinks sold, but having regard to the photographs provided and the opening hours of the business, it appears to be mainly providing breakfast and lunch options. This is similar to the previous business and other cafes that offer an all-day menu but does not distinguish the café from being full service or limited service. The Tribunal was not provided with a current floorplan or photographs which show the seating, so it has doubts as to whether the seating capacity is 60 people as annotated on the previous floorplan. The seating drawn on to the floorplan given to the Department does not reflect seating capacity of 60, with around 50 seats if the wall seating is counted (as can be seen from photographs given to the Department). The opening hours appear to reflect that of the shopping centre in which it is located, which would be expected for a shopping centre or mall cafe. Mr Phelan and Ms Surnam referred to the persons who cooked and prepared the food as chefs, although the submissions referred to the food being prepared by Cooks. The Tribunal is unable to determine with any certainty whether they are chefs or cooks as, despite requesting payslips for all employees, they were not provided. In any case, none of these factors alone is conclusive.
Having regard to the location of the café in a shopping centre (or mall) as well as the opening hours and customer base, the Tribunal considers that the food and service offered is for the convenience of shoppers, rather than for those that seek out the venue as a full service restaurant. The Tribunal considers that the nature of the business is to provide fast, healthy food prepared fresh to order in a casual setting to shopping centre customers during centre opening hours. On the information provided, the Tribunal is of the view that the business is not distinguishable from a shopping centre or mall café. It thus finds that the Leaf & Grind Café is a limited service restaurant. Given this, the nominated occupation does not correspond to an occupation specified in the relevant instrument and is not applicable in accordance with the specification of the occupation. The requirements of r.2.72(10)(aa) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Wan Shum
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(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 the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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