Aji Enterprise Group Pty Ltd (Migration)

Aji Enterprise Group Pty Ltd (Migration) [2017] AATA 1341 (31 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AJI Enterprise Group Pty Ltd
CASE NUMBER:  1515801
DIBP REFERENCE(S):  BCC2015/2114447
MEMBER:Hugh Sanderson
DATE:31 July 2017
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 31 July 2017 at 10:45am

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 – Genuine position – Transport Company Manager – Person already employed by applicant in same position – Business in operation 24 hours a day – Requirement for two people in nominated position
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA
Migration Regulations 1994, r 1.13A, r 1.13B, r 2.57, r 2.57A, r 2.72, r 2.73

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 28 October 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 23 July 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied the position associated with the nominated occupation was genuine.
Background
The applicant provided a statement claiming that it is a transportation company in operation since February 2013. The business has a contract with Aussie Farmers Direct supplying mainly dairy products to customers, mainly between midnight and 7:00am. The delivery service operates 24 hours a day. The applicant has three full-time employees and 7 to 10 subcontractors that work full-time using their fleet of six trucks and two vans.
The applicant was nominating Vishal Sharma for the position of Transport Company Manager (ANZCO 149413). It was stated that the director had previously been in charge of this position but was now focusing on developing and expanding the business.
The delegate who considered the application noted the following issues:
·Although the applicant claimed the position was newly created, Departmental records showed that the applicant currently had a 457 visa applicant employed in the position of Transport Company Manager;
·The organisational chart only indicated the applicant employed three employees, including the director and two administrative officers and eight subcontractors;
·The organisational chart did not refer to the other employee who is employed on 457 visa;
·The business is relatively small with no evidence of significant growth; and
·The business of the size and scope of the applicant would not likely require a second full-time Transport Company Manager in addition to the director of the business.
Taking these factors into account, the delegate was not satisfied that the position associated with the nominated occupation was genuine and did not meet the criteria in r.2.72(10)(f) and refused the application for approval of nomination.
Information to the Tribunal
The Tribunal wrote to the applicant inviting him to provide further information in support of the application. The applicant provided further documents including the following:
·Employment contract for Mr Sharma;
·Organisational chart showing the company employing a director (Joseph Joukhador), and office administrator (Bernadette Joukhador) a Transport Company Manager on a 457 visa working from 9:00pm to 6:00am (Baljit Singh) supervising six subcontractors and the nominee for Transport Company Manager working 7:00am to 4:00pm supervising seven subcontractors;
·Pay slips for the nominee;
·Bank details for the nominee’s wife showing payment to the nominee;
·Job advertisements for the position of in Perth, the Gold Coast and Brisbane;
·Company tax returns and balance sheets;
·VETASSESS report on the nominee dated 30 May 2017 assessing him as suitable for migration purposes;
·Registration certificates for various vehicles owned by the company;
·Examples of route deliveries; and
·Business activity statement the company.
Mr Joukhador for the applicant appeared before the Tribunal on 25 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The applicant was represented in relation to the review by its registered migration agent.
Mr Joukhador gave evidence as to the operation of his business. He said the business had expanded considerably and now had 17 vehicles. He said that six of these vehicles were long wheelbase vehicles and used both day and night for deliveries.
The Tribunal noted a number of the vehicle registration documents provided by Mr Joukhador indicated that at least four of those vehicles were registered in his sole name and not that of the company. Mr Joukhador said he had done this on the advice of his accountant but that all the vehicles were work vehicles.
Mr Joukhador gave evidence of the various businesses he had contracts with. This included Aussie Farms, Direct Couriers, RPM Freight, Capital, and Converge. He said that he was currently doing the driving on the Converge contract as he did not have an available driver for this contract at this time. He said that he had been doing this for three months, but before that he was involved in the management of the business, as well as spending more time with his family.
Mr Joukhador gave evidence of the work the visa applicant is engaged in during the day. He provided evidence of the work Baljit Singh did as the Transport Manager of the business overnight. He said that this was primarily engaged in arranging and ensuring deliveries by their drivers for Aussie Farmers Direct. He said that they also had contracts with a dairy company to deliver of milk.
The nominee gave evidence in support of the applications consistent to that provided by Mr Joukhador. He provided details of his normal working day and also information in respect of the night transport manager’s position. He provided details of his qualifications and experience in the area he was working.
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, Transport Company Manager, the corresponding ANZSCO code 149413, and the location, Sydney, at which the occupation will be carried out (r.2.72(8A) in relation to r.2.73(4A)(a)).
The Tribunal finds that the applicant has made the application in accordance with the approved form and paid the fees prescribed at the time of the application (r.2.73(3), (5), and (9)).
On the basis of the nomination application and the certifications provided to the Tribunal, 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.
On the basis of the Departments records, the Tribunal finds 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 7 October 2014 to 7 October 2017.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
The proposed visa holder, Mr Vishal Sharma, is identified in the nomination application as is required under the regulations.
For these reasons the requirements of r.2.72(5) are 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.
The nominee has not held a subclass 457 visa. The Tribunal finds that 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 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 has nominated the nominee for the identified position of a Transport Company Manager (ANZSCO 149413). The applicant has included the location of where the occupation will be carried out which is in Belmore, Sydney.
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 either about 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 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 current instrument as amended by IMMI 17/060 includes the occupation of Transport Company Manager ANZSCO 149413 in the Short-term Skilled Occupation List. It is subject to the exclusion of three conditions relevant to the current nomination:
·where the position predominantly involves responsibility for low skilled tasks such as rostering;
·where the position is in a business that has an annual turnover of less than AU$1,000,000; and
·where the position is in a business that has fewer than five employees.
The Tribunal has considered the evidence of the applicant and the nominee in relation to the work involved in the current position. Although the position does include some low skilled tasks, such as rostering, the Tribunal finds that the position includes many higher skill tasks such as organising routes, maintaining servicing for the vehicles, and other duties of a high skill level. The Tribunal is satisfied that the position does not predominantly involve responsibility for low skilled tasks.
The applicant’s balance sheet for year ending 30 June 2016 shows a total trading income of in excess of $1.6 million. The business activity statements indicate that for the first half of the financial year ending 30 June 2017 the total trading income was in excess of AU$700,000. The Tribunal is satisfied that the business has an annual turnover of more than AU$1,000,000.
The organisational structure shows the applicant is employing more than five people.
For these reasons the requirements of r.2.72(10)(aa) are met.
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 13/028: r.2.72(10)(AB). The current
There are no Australian citizens or permanent residents performing equivalent work at the same location. The Tribunal has taken into account the broader labour market information. Advertisements have been provided which indicate that fleet managers or transport managers are paid between $50,000 and $70,000. Information from payscale.com indicate the average salary for a transportation manager is $65,000 per annum with an overall salary range of between almost $51,000 and $103,000.
The employment contract the nominee has with the applicant provides a salary package of $60,300 per annum plus superannuation. This is less than the average salary for a transportation manager, but is more than the base salary that would be expected.
The Tribunal has considered the information provided as set out above. The Tribunal is satisfied that the earnings and the proposed terms and conditions of employment for the nominee in light of the position for which he would be employed are no less favourable than the earnings in terms and conditions that would be provided to an Australian citizen or permanent resident performing the equivalent work at the same location.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument 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 is $250,000.
The employment contract between the applicant and the nominee specifies that his annual income will be $60,300 per annum, excluding superannuation contributions. The payslips which have been provided for the nominee’s income substantiates this pay rate. Bank records have been provided showing the nominee’s pay being deposited into his wife’s bank account.
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 that r.2.72(10)(cc) is met
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or 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; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The applicant has certified the matters as set out above. The applicant has provided a copy of the nominee’s qualifications and assessment by VETASSESS dated 30 May 2017 finding that he had the required skills for the position of a Transport Company Manager.
For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The position of a Transport Company Manager, as described in ANZSCO includes that they organise and control the operations of an enterprise that operates a fleet of vehicles to transport goods. The tasks include:
·organising the purchase and maintenance of transport vehicles, equipment and fuel;
·liaising with clients to determine the requirements and providing customers with advice and information;
·receiving orders and bookings and planning and implementing transportation schedules;
·ensuring goods are stored and transported in conditions which will maintain their quality;
·arranging collection and delivery of vehicles and goods;
·maintaining business records;
·coordinating associated activities; and
·ensuring compliance with occupational and safety regulations.

The nominee’s employment contract reflects that the nominee is required to undertake these roles. The Tribunal has taken into account the evidence of the applicant and the nominee at the hearing and the further documents provided to the Tribunal by the applicant. The Tribunal is satisfied the nominee is engaged in the activities as set out above in his role as the Transport Company Manager.
The applicant’s business is contracted to transport various companies’ goods and produce both during the day and night. The business employs a second Transport Company Manager. That person’s role is undertaken during the night-time shifts. Although there is an overlap of some of the responsibilities of the two Transport Company Managers, such as the organising of maintenance and repairs for any vehicles, the Tribunal accepts that there are significant roles undertaken by both employees which requires a manager to be present at all times of the businesses operations. In particular, the receiving of orders and bookings and planning and implementing the transportation schedules are conducted at different times. The requirement to ensure the goods are transported in conditions that will maintain their quality is a continuing role and not one that could be managed by one manager. This is also the situation for arranging collection and delivery of the vehicles and goods.
In all the circumstances, the Tribunal is satisfied that the nature and size of the applicant’s operations and the fact that they are required to be in operation 24 hours a day means that it is reasonable that there are two Transport Company Managers employed by the business to manage the businesses operations both during the day and night. The Tribunal is satisfied that the nominee performs the duties of a Transport Company Manager and that he will continue to do so. The Tribunal is satisfied that the duties of the position associated with the nominated occupation are consistent with the majority of duties set out in the ANZSCO guide. The Tribunal is satisfied that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the instrument.
The applicant has submitted a copy of the signed employment contract setting out the terms and conditions of the nominee’s employment.
For these reasons 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.
There is no claim or evidence that the applicant is a party to a work agreement. 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.
The nominated occupation of Transport Company Manager is classified by ANZSCO as a Skilled Level 2. All occupations which are classified as Skill Levels 1 and 2 are specified for the purposes of occupational exemptions to the labour market testing requirements (IMMI 13/137).
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Conclusions
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.
Hugh Sanderson
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.

[2017] AATA 1341

31 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice