Aloe Vera of Australia Proprietary Limited (Migration)

Aloe Vera of Australia Proprietary Limited (Migration) [2017] AATA 1577 (31 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Aloe Vera of Australia Proprietary Limited
CASE NUMBER:  1513855
DIBP REFERENCE(S):  BCC2015/2225983
MEMBER:Antonio Dronjic
DATE:31 August 2017
PLACE OF DECISION:  Melbourne
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 August 2017 at 3:19pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) – Position not genuine – Quality Assurance Manager – Applicant provided updated information on nominated position
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 140GBC, 359
Migration Regulations 1994, r 1.13A, r 1.13B, r 2.57(3A), 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 21 September 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 4 August 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) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The applicant applied to the tribunal on 12 October 2015 for review of the delegate’s decision. With the review application, the applicant submitted a copy of the primary decision record.
On 2 March 2017, the tribunal invited the applicant’s authorised person and the applicant’s representative to attend a call over on 17 March 2017. They were advised that the purposes of the call over was to establish whether the case was ready to be set down for hearing, and that the types of issues that would be discussed included what evidence the applicant intended to rely upon, the timeline for submission of further documents (if any), whether the applicant intended to call witnesses for any hearing, the scheduling of any hearing, and whether the tribunal would issue a s.359(2) letter requesting further information.
Mr Peter McDougall attended the call over on behalf of the applicant on 17 March 2017. The tribunal (differently constituted) discussed with him the fact that it would issue a s.359(2) letter shortly requesting him (or another authorised person) to provide specified information on behalf of the applicant within 14 days (with 1 possible extension of 14 days), failure to comply with which would result in the loss of a right to a hearing.
On 21 March 2017, the tribunal sent a letter to the applicant which contained a request to the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 2.72 of the Migration Regulations. The request was made pursuant to section 359(2) of the Act.
On 3 April 2017, the applicant’s representative submitted the following relevant documents:
·Submissions
·DIBP Notice of sponsorship approval for Aloe Vera of Australia Pty Ltd;
·Information about the company’s products;
·Commonwealth Bank statement from February to March 2017;
·BAS statements from January 2016 to June 2016;
·Company profile;
·Employment contract;
·Financial Statements for the sponsoring business for the year ending on 30 June 2015;
·Salary Market Rate Report;
·Organisation chart; and
·Photos of business premises and machinery.
On 20 April 2017, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 31 August 2017
Mr Peter McDougall appeared on behalf of the sponsoring business to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. The representative attended the tribunal hearing.
After confirming his authority to represent the sponsoring business in these proceedings, Mr McDougall stated that the sponsoring business was established in 1977. All five full time employees of Aloe Vera of Australia Proprietary Limited are Australian Citizens.
The company imported the first Aloe Barbadensis plants into Australia, and set up the first Australian plantation. The company is now one of the leading Aloe Vera suppliers within Australia and exports to many countries around the world. Currently, Aloe Vera of Australia Proprietary Limited is the only grower of Aloe Vera Barbadensis Miller in Australia. It specializes in the formulization of Aloe Vera juices, Beverages, Skin care and Cosmetics. The sponsoring business grows processes and manufactures Aloe Vera juice.
Mr Peter McDougall’s daughter, Ms Dooni McDougall, is the applicant’s Managing Director. Together with her sister she holds company shares. The company’s turnover in the last financial year exceeded 1.2 million dollars.
Some four years ago, the sponsoring business has identified need to employ an in house Quality Assurance Manager. The business intends to expand its product range and enter into skincare products market. Two years ago, Mr Wang (the nominee) was introduced to the business by its legal adviser. Mr Wang holds both Degree and PhD in Chemistry and has substantial experience in chemical engineering field. Because of his current visa restriction, the nominee has not commenced employment at the sponsoring business.
Prior to being introduced to the nominee, the business attempted to find a suitable person for the position using their industry network. Mr McDougall stated that it is very difficult to find a person with the nominee’s skills and qualification. The company is delighted to have recruited Mr Wang for the position. He is his familiar with the Chinese chemical sector which will be of great use in identifying and applying for certifications. The sponsoring business did not attempt to recruit an alternative person for the position because they need the person with the nominee’s skills, experience and qualifications.
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 made the application in accordance with the approved form, and paid the prescribed fee, as it was at the time of application. The tribunal is satisfied that this form identified the person proposed to work in the occupation, the ANZSCO code of the occupation and the location of the occupation.
On the basis of the Business Nomination Visa form the tribunal is satisfied that the nominating employer has provided the necessary certification stated in r.2.72(10)(d) or (11)(b) (regarding tasks, qualifications and experience).
The tribunal finds that r.2.72(3) is satisfied.
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 DIBP records for Aloe Vera of Australia Proprietary Limited, the tribunal finds that the applicant was approved as a standard business sponsor for a five year period commencing on 28 August 2015 and that this status remains in effect.
The tribunal finds that r.2.72(4) is satisfied.
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.
On the basis of the information provided in the Business Nomination Visa form the tribunal is satisfied that that the applicant has identified the person to undertake the nominated occupation and that he is a subclass 457 visa applicant.
The tribunal finds that r.2.72(5) is satisfied.
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.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant stated in the nomination application form that the nominated occupation is Quality Assurance Manager and provided the corresponding ANZSCO code of 139914. The applicant has recently confirmed this information. The location at which the occupation is to be carried out is also included in the nomination.
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 me to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an ‘associated person’.
For these reasons I am satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
I am satisfied that the applicant is a standard business sponsor and that the nominated occupation of a Quality Assurance Manager and corresponding ANZSCO code appear on the relevant list in the relevant instrument. The instrument does not require that the nomination be supported in writing by a specified organisation.
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 the relevant instrument: 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 relevant instrument: r.2.72(10)(AB).
In addition, r.2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment will be greater than the Temporary Skilled Migration Income Threshold specified by the Minister in an instrument (although this may be waived if the circumstances in r.2.72(10A) exist). The current Temporary Skilled Migration Income Threshold (TSMIT) for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028.
On the basis of the contract of employment which specifies a salary of $75.000 (not including superannuation), which is under the threshold of $250,000, I find that the requirements in in r.2.72(1)(c) and r.2.72(10)(cc) apply in this case.
The applicant indicated that there is no Australian citizen performing equivalent work at the same location. The applicant has submitted research regarding the market salary rates, including job vacancy advertisements for similar roles in the same location. On the basis of this evidence, I consider the market rate of pay to be equal to that offered to the applicant. I am accordingly satisfied that the proposed terms and conditions of employment for the nominated person are no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing equivalent work in the applicant’s workplace at the same location: r.2.72(10)(c) is therefore satisfied.
As the pay of $75,000 (not including superannuation) for the nominated position exceeds the current TSMIT of $53,900,I find that r.2.72(10)(cc) is also satisfied.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.
The applicant has provided evidence to the department and the tribunal at review that the position includes the tasks of the nominated position of a Quality Assurance Manager listed in ANZSCO. The applicant is lawfully operating a business in Australia and the nominated position is within the company. Having regard to the occupational duties of the position I find that the position includes the majority of tasks of the nominated occupation as outlined in ANZSCO.
Accordingly, I am satisfied on the basis of the relevant certifications in the application form that r.2.72(10)(e) is met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
I have carefully considered the applicant’s evidence regarding the ongoing need for the position. Not all occupations are included as part of the nomination approval process. To maintain integrity of the nomination and visa process the tribunal must consider whether the position can properly be described as that of a Quality Assurance Manager.
Mr McDougall gave evidence that the sponsoring business plans to expand its business into the overseas market. Exporting products with health claims requires complex statutory licenses and government certifications. In addition, the consumers in this market are also increasingly vigilant about the health effects of product additives and product purity. In the past quality control work related to cosmetic products was outsourced to external contractors. The Quality Assurance Manager will oversee the production of those products to ensure that they meet quality requirements and for certification purposes.
The nominee will not only be in charge of the quality control of the existing products but will also help manufacture new skin care products. He will also review and document the company’s current production methods and procedures.
None of the current employees has specific expertise in chemical research and quality assurance fields that we required for production of the company’s products. It was submitted that a dedicated Quality Assurance Manager is required to ensure the continuing purity and good quality of the products.
I considered the ANZSCO description of the occupation of a Quality Assurance Manager. While I am not bound by that description, I am satisfied that the position would involve the type of duties outlined in the ANZSCO.
I have taken into account the evidence regarding the business’s turnover, the position description, the employment agreement, the organisational chart, the financial documents and the statement of need provided by the applicant. Having regard to the information provided in the application form, including the relevant certifications provided by the applicant, as well as the updated information given to the tribunal regarding the role, I am satisfied that the position associated with the nominated occupation is genuine.
Based on the evidence before me I am satisfied that there is a genuine need for the position and 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 relevant instrument.
The applicant has submitted to the tribunal an employment contract for the nominee setting out the main terms and conditions of employment.
I find on the basis of the evidence before me that r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.

The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
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 the relevant instrument.
In this case, the nominated occupation is Quality Assurance Manager. This occupation is classified as Skill Level 1 in the ANZSCO dictionary. All occupations which are classified in the ANZSCO as Skill Level 1 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In addition, the position description for the nominated position indicates that the minimum required qualifications for the position are qualification equivalent to a bachelor degree or higher qualification. In these circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the labour market testing condition in s.140GBA.
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.
Antonio Dronjic
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 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 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 1577

31 August 2017

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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