AL REHMAN GROUP PTY LTD (Migration)

AL REHMAN GROUP PTY LTD (Migration) [2021] AATA 604 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Al Rehman Group Pty Ltd
CASE NUMBER:  1807949
HOME AFFAIRS REFERENCE(S):          BCC2018/1006956
MEMBER:K. Chapman
DATE:2 March 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 02 March 2021 at 1:07pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – inapplicability condition – position based in franchise not automatically excluded – job tasks – mass/standardised production, not customised/specialised – genuine position – director performs most duties himself – labour market testing – one advertisement for one month – no evidence of why other applicants unsuitable – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

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 Home Affairs on 7 March 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, Al Rehman Group Pty Ltd, applied for approval on 2 March 2018. The applicant nominated Mr Shahid Hafeez Khokhar (‘the nominee’) in the occupation of Pastrycook. This occupation is coded as number 351112 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The nominated position is located at a Cheesecake Shop franchise in the greater Brisbane area.
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 failed to satisfy the requirements of s.140GBA in relation to Labour Market Testing (LMT). On 23 March 2018, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.
On 25 August 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response the Tribunal received material including, but not limited to, submissions, an employment contract, ASIC information, job description, organisational chart, taxation documentation, standard business sponsorship approval notice, financial records, commercial invoices, photographs, market salary information, visa and English language documents pertaining to the nominee, market salary information and the Franchise Agreement relating to the Cheesecake Shop. Additionally, prior to the review hearing, the applicant also submitted further material including financial and taxation records, Cheesecake Shop menu, record of a Seek advertisement and medical information pertaining to the director of the applicant company. All submitted material has been duly considered by the Tribunal.
The Tribunal, with the consent of the applicant, scheduled a combined review hearing for the matters of 1807949 and 1811718, given they both pertain to nominations made in relation to the nominee in the occupation of Pastrycook. The applicant, through its director Mr Rizwan Zafar, appeared by telephone before the Tribunal on 2 February 2021 to give evidence and present arguments. Mr Zafar, on behalf of the applicant, confirmed that he was comfortable participating in the hearing by telephone and that no other witnesses were to be called. The applicant was represented in relation to the review by their registered migration agent, who was permitted to make submissions during the review hearing.
The applicant requested, and was granted, the opportunity to make post-hearing submissions. On 9 February 2021, the Tribunal received written submissions and material including, but not limited to, submissions, market salary information, the statement of Mr Zafar dated 9 February 2021 and references regarding the experience of the nominee. All submitted material has been 6duly considered by the Tribunal.
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). In addition, for nominations made from 23 November 2013, s.140GBA must be 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 IMMI 18/004 (as is relevant to the present application for nomination under review), and the occupation must be applicable to the person identified in the nomination in accordance with the 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 applicant nominated the occupation of Pastrycook, which is coded as number 351112 in the ANZSCO. The aforementioned occupation has attached to it the following inapplicability condition (or ‘caveat’) in accordance with instrument IMMI 18/004:
· Item 17 – the position relates to mass or standardised production (as opposed to specialist production), including the following:
(a) a position based in a franchise or factory;
(b) a position that:
(i) involves full or partial production of food product for distribution to another location; or
(ii) predominantly involves the use of pre‑prepared food product from another location.
The Tribunal notes that Departmental policy makes reference to the assessment of whether a position relates to mass or standardised production[1]. Of note, it provides that a position based in a franchise is not ‘automatically excluded by the caveat’, with consideration to be given to ‘whether the pastry cook’s position involves mass/standard production or specialist production’. It is well settled that the Tribunal is not bound by Departmental policy, but should pay it due regard unless there are cogent reasons for departure.[2] In the present matter, no such reasons are apparent to the Tribunal. Accordingly, the Tribunal has assessed the applicant’s Cheesecake Shop franchise operation carefully, and in doing so has duly considered Departmental policy, to determine whether the nominated position relates to mass or standardised production (as opposed to specialist production).
[1] Procedures Advice Manual 3 (PAM3): [Div 2.11 – Div 2.17] Temporary Work (Skilled) visa (subclass 457) – nominations, Section 4.8.1.3. Occupation specific caveats - Pastry Cook (ANZSCO 351112) – Condition 17.
[2] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
During the review hearing, the Tribunal canvassed with Mr Zafar the topic of the inapplicability condition. Mr Zafar informed the Tribunal that the core products (cakes) in his Cheesecake Shop outlet are made from scratch and not pre-prepared. He outlined that there is a set menu used by the shop, then added that some customisation is permissible. As the hearing progressed, and the Tribunal further canvassed the topic of the inapplicability condition, Mr Zafar indicated that the menu ‘is not very set’. Mr Zafar confirmed to the Tribunal that the applicant company is a franchisee to the Cheesecake Shop franchisor.
Mr Zafar advised the Tribunal that the ingredients for the cake products are received from the franchisor’s Head Office, as are the key baking implements such as foils and rings. He explained that the received ingredients are mixed in his store, put in the foils, baked according to the specified temperature requirements, cooled at room temperature, boxed and stored in the cool room. Upon enquiry of the Tribunal, Mr Zafar confirmed that the recipes for the cakes are provided by Head Office, although he added that the age of the utilised equipment can change the recipe stipulated temperatures and therefore baking skills are required to make suitable adjustments. When asked by the Tribunal if the food menu can be altered without the approval of the franchisor, Mr Zafar confirmed that the core products (cakes) must be made in accordance with the franchisor’s specifications, although some customisation is permitted.
As the Tribunal further canvassed the topic of the inapplicability condition, Mr Zafar contended that forty percent of his cakes are custom made. When asked again by the Tribunal if the applicant company can depart from the franchisor’s recipes, Mr Zafar confirmed that the core products (cakes) ‘cannot be changed’ although customisation is permitted. For example, flavour combinations can be amended and celebratory messages affixed to the cakes.
The Tribunal notes that Mr Zafar described himself in early oral evidence as ‘not a pastrycook or chef’, rather a person knowing how to run the business. According to Mr Zafar, that is why he needs to employ the nominee in the nominated position. Upon enquiry of the Tribunal, Mr Zafar confirmed that the nominee does not presently work for him, as he has not yet moved up from Sydney. Mr Zafar confirmed that he signed an employment agreement with the nominee in 2017 and is still waiting for him to commence following resolution of his visa status (the submitted employment contract records the date of execution to be 30 January 2017). Mr Zafar outlined, and submitted medical evidence confirms, that he has a back complaint aggravated by his duties baking in the store and this is a further reason why he requires the services of the nominee who has extensive experience in other Cheesecake Shop outlets (as indicated by the submitted documentary material, including references). When asked by the Tribunal who performs the majority of the baking in the absence of the nominee, Mr Zafar confirmed that he does with the help of some assistants.
The Tribunal raised with Mr Zafar, on behalf of the applicant, that the evidence before it tended to suggest that the nominated position relates to standardised production in a franchise setting, with respect to the inapplicability condition, inviting his comment. Mr Zafar disagreed and outlined that the shop does not use any pre-prepared food, everything is made from scratch in the shop, it is not a mass production business, products are sold locally and that special skills are required to make the products. The Tribunal has carefully considered this response. The Tribunal has also paid due regard to the submitted documentary material, including contentions from Mr Zafar, that the inapplicability condition does not apply to the applicant. The Tribunal has paid due regard to such documentary material.
The Tribunal has also considered the relevant documentary evidence including, but not limited to, the statements and submissions made by Mr Zafar as to the customisation of the cakes sold in his store. Whilst the Tribunal accepts that some customisation of cakes takes place, on balance the Tribunal finds that the nominated position relates to standardised production in a franchise setting. This is for the following reasons. The submitted Franchise Agreement is prescriptive and directs the applicant with regard to the preparation, storage and display of authorised products, prohibits the sale of unauthorised products, and mandates the use of authorised ingredients (for example, see paragraphs 3.20, 9.1, 9.2, 9.3 and 9.4). Further, the submitted copy of the menu points to the bulk of products sold by the applicant being of a standardised nature. Additionally, the Cheesecake Shop branding on the submitted menu and premises is suggestive of the applicant’s products conforming to standardised production.
Whilst the Tribunal accepts that some niche customisation of cakes sold by the applicant does take place, the bulk of the evidence before it tends to suggest that the nominated position relates to standardised production in a franchise setting. Of note, Mr Zafar’s early spontaneous oral evidence before the Tribunal confirmed that he performs the majority of the baking in the store in the absence of the nominee, whilst himself acknowledging he is not a Pastrycook or Chef. Furthermore, he initially confirmed that the bulk of products sold by the applicant company conform to a set menu. The Tribunal prefers this evidence to the ex-post facto attempt, in subsequent oral and documentary evidence, to cast the applicant’s commercial baking as specialised in nature rather than standardised.
On balance, when the above matters are considered cumulatively, the Tribunal is satisfied that the nominated position relates to standardised production in a Cheesecake Shop franchise setting. Accordingly, the Tribunal finds that the nominated occupation of Pastrycook (ANZSCO Code 351112) is precluded from nomination due to the operation of the inapplicability condition at Item 17 of Instrument IMMI 18/004.
For these reasons, the applicant’s nomination does not meet the requirements of r.2.72(10)(aa) of the Regulations.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The applicant nominated the occupation of Pastrycook (ANZSCO 351112). The nominated position is located at the applicant’s Cheesecake Shop franchise in the greater Brisbane area. For the following reasons, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
Mr Zafar staunchly maintained to the Tribunal that he requires the services of a full time Pastrycook in the applicant business. He outlined that he suffers a back complaint that pre-dates the application for nomination (which is accepted by the Tribunal) as an additional reason for needing the nominee to commence employment. Of note, Mr Zafar signed an employment agreement with the nominee on 30 January 2017. It is worth pausing to reflect that despite the purported pressing need for the services of a full time Pastrycook, the nominee has not yet moved from Sydney and commenced work with the applicant, nor has another individual been identified to fill this position, despite the passage of more than four years since execution of the employment contract.
Further, Mr Zafar outlined in his oral evidence that he performs the bulk of the baking in the applicant’s Cheesecake Shop and acknowledged that he is not a Pastrycook or Chef himself. Additionally, as outlined above, the applicant’s business is subject to a prescriptive Franchise Agreement mandating the standardised production of core products (cakes). When considered in combination with the size and organisational structure of the business, the aforementioned matters tend to suggest there is not a bona fide requirement for the applicant to engage a full time Pastrycook.
Following careful consideration of the evidence, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(f) are not met.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.
To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 13/136, which is a period of 12 months. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The Tribunal accepts the applicant placed one advertisement for the position of Pastrycook on Seek.com.au, for one month from 21 December 2016 until 20 January 2017, as confirmed by Mr Zafar in his oral evidence and by the submitted documentary material. Further, the Tribunal accepts that the submitted documentary material relating to this advertisement records there were fifty two applications made for the position. However, the Tribunal does not accept that this recruitment process genuinely intended to test the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident, or eligible temporary visa holder, was readily available to fill the position. This is for the following reasons.
Mr Zafar outlined in his oral evidence that he met the nominee during a 2013 training visit to the Cheesecake Shop Head Office. Mr Zafar spoke at length of his desire to employ the nominee given his extensive experience with other Cheesecake Shop outlets. Indeed, it is worth pausing to reflect that Mr Zafar has waited more than four years for the nominee to commence work with him since signing the contract of employment. Mr Zafar has even performed the majority of the baking duties since that time according to his own oral evidence, in spite of his back complaint. Additionally, the Tribunal notes that Mr Zafar’s oral evidence regarding the response to the applicant’s recruitment advertising lacked detail. Further, no detailed evidence has been submitted regarding the particulars of the fifty one other applicants for the advertised Pastrycook position.
On balance, the Tribunal is not satisfied that the applicant met the requirement to conduct labour market testing given the matters outlined above. Accordingly, the Tribunal finds that the labour market testing requirements in s.140GBA 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.
K. Chapman
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)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.

[2021] AATA 604

2 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction