Anytime Offices Management Pty Ltd (Migration)

Anytime Offices Management Pty Ltd (Migration) [2021] AATA 2307 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Anytime Offices Management Pty Ltd
CASE NUMBER:  1823055
HOME AFFAIRS REFERENCE(S):          BCC2017/3850442
MEMBER:Namoi Dougall
DATE:16 June 2021
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 16 June 2021 at 4:29pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – nominee a co-owner as well as employee – business history and future plans – demand and requirements during COVID-19 restrictions – job tasks compared to ANZSCO description – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 140GB(2)
Migration Regulations 1994 (Cth), rr 2.72(10)(f), 2.73

CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 20 July 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 19 October 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 that the position associated with the nominated occupation was genuine. In particular, the delegate found that there was insufficient evidence to support the claimed duties the nominee had been performing in the position description. Further, the delegate found that the size of the business, length of operation, staffing structure, and that there was no attempt to advertise the position, indicated that the position associated with the nominated occupation existed to facilitate the stay of the nominee, Robert Okulus in Australia rather than to fill a genuine vacancy or skilled shortage.
Mr Seweryn Komorowski, a director of the applicant appeared on behalf of the applicant before the Tribunal on 9 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Robert Okulus who is also a director of the applicant.
The applicant was represented in relation to the review by its registered migration agent.

BACKGROUND

Provided to the Tribunal by the applicant from ASIC was a Current & Historical Company Extract for the applicant which indicated that the applicant was registered on 23 June 2016 and that Mr Komorowski, the nominee and one other person are the directors of the applicant and have been since the company was registered.
The business nomination application lodged with the Department stated that the nominee would be employed by the applicant at the location of Randwick in Sydney, New South Wales a Facilities Manager (ANZSCO 149913) on a salary of $78,000.
A submission to the Department stated that the applicant’s business provides physical and virtual office space originally in Randwick and then from August 2017 also in Botany (the business). At the time of the submission the applicant employed the nominee, on a full time basis and 3 other part time ‘Australian employees’.
In a statutory declaration dated 3 July 2018 and provided to the Department, the nominee stated that he first came to Australia in 2002 on a student visa. In 2005, he was employed by Regus, a worldwide serviced office provider, who promoted and transferred him to Melbourne in 2009. The nominee was made redundant in December 2015, and after initially trying to find another job he decided to establish his own business with Mr Komorowski. From late 2015 they shortlisted properties and opened their first centre in Randwick in November 2016 and a second centre in Botany in August 2017.
The nominee also stated in his statutory declaration that In April 2013 he applied for a partner visa and was granted s Subclass 820 visa in September 2014, but the Subclass 801 visa was refused by the Tribunal in September 2016. The nominee stated that by the time the Tribunal made its decision his relationship had broken down and he had applied for a Subclass 457 visa. The nominee further stated that he was fully engaged in developing the applicant’s business from December 2015, long before his relationship broke down.
The nominee also stated in his statutory declaration that he is the Facilities Manager of the business and runs the business on a day to day basis. He has been engaged full time in developing the business from December 2015 and became an employee drawing a salary from 1 June 2017.
Provided to the Department and the Tribunal was an Employment Agreement dated 25 May 2017 and a salary review dated 10 October 2017 which indicates that the nominee’s salary increased from $73,000 to $78,000. Subsequently additional payroll information and the nominee’s Notices of Assessments from the ATO for the financial years ending 30 June 2018, 2019 and 2020 which indicated that in the 2020 financial year the nominee’s salary was $87,300.
At the hearing Mr Komorowski stated that the business was started by the nominee and himself in 2016 as they had enough experience in the industry. The first location was in Randwick. The size of the area was 346 m2 so they could afford the rent an and generate income. Even before the business was opened, 30% of the space was already leased with one major client moving in during construction taking 4 out of 22 offices. The Randwick space has a boardroom and meeting room, as well as, the 22 offices. A year later the business opened on Botany Road, which is 280 m2, slightly smaller than what they wanted but the rent was competitive at 1/3^rd less than the rent at Randwick. The Botany space has 23 offices.
At the hearing Mr Komorowski stated that the business currently cooperation in a space in Castlereagh Street in the Sydney CBD with Australia Study. The business uses the address as a virtual office, although they also collect mail from that location. They have 30 to 40 clients who have signed up for that address. The applicant is considering opening offices in another CBD space but COVID has delayed those plans so currently it is 50/50 that the plans for Castlereagh Street will proceed as they have to be satisfied that the space will generate a profit and there is a cost with setting up meetings rooms. The other office space in the business’s pipeline is at the corner Hunter and Pitt Streets but the business is negotiating with 2 landlords and he believes that this space is also a 50/50 chance of proceeding. If this space proceeds the applicant will not proceed with the Castlereagh space.
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 applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

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 reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Mr Robert Okulus in the nomination. The nomination includes the location of Randwick, in Sydney, NSW, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Facilities Manager 149913. 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.
Departmental records indicate that the applicant was approved as a standard business sponsor on 9 May 2018 and that the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor. For these reasons the requirements of r.2.72(4) are met.
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 applicant has identified in the nomination Mr Robert Okulus, the nominee to work in the nominated occupation of Facilities Manager. For these reasons the requirements of r.2.72(5) are met.

Requirements for existing Subclass 457 visa holders

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 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 provided the name of the occupation, Facilities Manager, and its corresponding ANZSCO code of 149913 and the location of Randwick in Sydney which is where the occupation will be carried out.
For these reasons the requirements of r.2.72(8A) are met.

Certification relating to conduct under s.245AR(1)

Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
Having perused the Department’s file, the Tribunal is satisfied that the applicant has provided the required certification as part of its nomination.
For these reasons the requirements of r.2.72(8B) 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 Immigration, either about the nominee or a person associated with the applicant.
For these reasons the requirements of r.2.72(9) are met.

Specified occupation

Regulation 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, 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: reg 2.72(10)(b).
The nominated occupation of Facilities Manager and its 6-digit code of 149913 is specified in the relevant instrument. Also specified in the instrument are caveats which, if relevant to the nomination, would make the occupation inapplicable for the nominee as a subclass 457 visa applicant. The relevant caveat is at note 14 and states as follows:
The position:
(a) is not located in a commercial building or shopping centre environment; or
(b) predominantly involves managing the provision of only one particular service to a facility or managing one particular relationship.
Example: Managing the cleaning contract for a facility but not other contracts relevant to the facility.
The Tribunal is satisfied from information provided to the Department and the Tribunal that the location of the business is located in more than one commercial building at Randwick and Botany and is not located in a shopping centre. The position requires the management of both spaces including: the set up for new clients and flexible working spaces; maintenance; and all aspects of OH&S. In addition, the position is responsible for: customer relationships and ensuring maintenance of customers; and oversight and arrangements with all external contractors. Therefore, the Tribunal is satisfied that the relevant caveat is not applicable to the nominated occupation and finds that the nominated occupation is applicable for a subclass 457 visa applicant.
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 (Cth).
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: reg 2.57(3A). ‘Earnings’ is defined in reg 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 13/028 which is $250,000: reg 2.72(10AA). The nominee’s earnings are less than those specified in the instrument.
The evidence before the Tribunal indicates that the nominated position is currently filled by the nominee and that there is no Australian citizen or permanent resident in the applicant’s business performing equivalent work at the same location.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in an Employment Agreement dated 30 May 2017 and signed by Mr Komorowski and the nominee together with a salary review letter dated 10 October 2017 which indicate that the annual base salary of the nominee was to be $78,800. However, the Tribunal was subsequently provided with a Notice of Assessment – year ended 30 June 2020 which indicates that the nominee’s actual salary is $87,300. The contract also sets out the details of the nominee’s superannuation and leave entitlements.
The Tribunal has also had regard to the current market salary information provided by the applicant including the salary range for an average Facilities Manager in Australia as set out at PayScale.com which is from $60,000 to $110,000 with the median being $82,500. Also provided as part of the post hearing submission was a job vacancy advertisement on Seek for a similar position. The Tribunal is satisfied on the evidence before it that the proposed base salary of $87,300 is greater than the market rate for an Australian equivalent.
On the evidence before it, the Tribunal is satisfied that the terms and conditions of the nominee’s employment will be no less favourable than those that are provided, or would be provided, to an Australian citizen or permanent resident performing 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.
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: reg 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: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.
Likewise, the requirement in reg 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: reg 2.72(10AB).
In this case the nominee’s annual earnings are $87,300, as this is not equal to or greater than the threshold of $250,000 specified in IMMI 13/028 r.2.72(10)(cc) applies.
The Tribunal is satisfied that the relevant rate of pay is greater than the TSMIT of $53,900. For these reasons the requirements of r.2.72(10)(cc) are met.

Certification under reg 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;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The Tribunal is satisfied that the relevant certifications have been made in the nomination form. 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. 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.
Provided to the Department was a job description which stated that the responsibilities were:
·overseeing and agreeing contracts and providers for services including security, parking, cleaning, catering, IT, telecoms, printers, banking services
·supervising multi-disciplinary staff including cleaning, maintenance, reception and customer service / concierge
·ensuring that basic facilities, such as water, electricity and air-conditioning are well maintained
·managing budgets and ensuring cost-effectiveness
·allocating and managing space between locations
·allocating and managing furniture allocation between business centres
·ensuring that facilities meet government regulations and environmental, health and security standards
·advising businesses on increasing energy efficiency and cost-effectiveness
·overseeing building projects, fit out works, renovations or refurbishments
·helping businesses to move in making sure offices are set up in line with client requirements
·relocate and move out from offices
·make decisions about leasing arrangements
·drafting reports and making written recommendations
·liaison with landlords and property agents

The Tribunal has had considered the ANZSCO occupational dictionary in relation to the position of Facilities Manager (149913) which is described as follows:
Alternative Title:
Building Manager
Organises, controls and coordinates the strategic and operational management of buildings and facilities in a public and private organisations to ensure the proper and efficient operation of all physical aspects of a facility, to create and sustain safe and productive environments for occupants.
At the first hearing Mr Komorowski stated, that he has 2 Managers and 4 part time customer service representatives, split evenly over the 2 locations. Mr Komorowski said he is not involved in day to day management as he is responsible for strategy and planning including finding new locations and ascertaining what can be offered to new clients. The way the applicant’s business operates is to listen to the clients and offer them services that they need as those. As directors, the nominee and he brainstorm what they can do to grow the business. He also stated that it is the nominee’s responsibility to find new locations and he gets involved with determining whether to proceed with that location. Mr Komorowski also stated at hearing that his involvement in the day to day of the business is limited as he runs another business.
At the hearing Mr Komorowski stated that the nominee’s role is Facilities Manager and he finds new locations and potential investors and business partners. When they are looking at new locations the nominee: researches what is need in the area; contacts the property agent; inspects the property; prepares floor plan, feasibility report and business case. They business does not always rely on the numbers as they also consider how much revenue a particular space will earn. For example, they are aware that in Surrey Hills coworking is better but in Botany private offices work better. The nominee with his experience would know what the clients want in an area, and what is being offered by their competition in that area, as he did this type of research and reports in his previous job. The business has to be careful in its approach to finding new locations as they are a small player who cannot afford for a location not to work financially.
At the hearing the Tribunal asked what the nominee’s duties are and Mr Komorowski stated he works to maintain customers and he also has a crucial role in ensuring all COVID requirements are met. Also, during COVID, he was responsible for the tough negotiations the business had with its Randwick landlord. The nominee was needed more than ever during COVID as the business lost some customers, but they have survived.
At the hearing Mr Komorowski stated that the nominee is responsible for keeping clients happy, so they remain with the business. He explained that sometimes the clients want to have their own offices, so the nominee works with them to find out what they need to stay.
At the hearing Mr Komorowski stated that the front of house managers was were responsible for customer service which includes: welcoming; receiving packages; supervising cleaners; organising maintenance; stocking up kitchens; and answering calls. They also look after the client’s visitors until the client is ready to meet with them. The front of house managers also: organise bookings for meetings; ensure COVID sign in and general sign in; ensures that the internet works; and that there is coffee.
At the hearing Mr Komorowski stated that the customer service representatives only sits at the reception counter after they have opened the centre, turned on lights, ensured that the cleaners have done their job and the kitchen is clean and tidy. The roles are similar but the front of house manager have more responsibility including rostering and, if there is weekend bookings, it is the front of house managers who let clients in and as those clients are often one off bookings who need house and COVID rules explained, as well as, how the space works and be given passwords for the internet.
At the hearing Mr Komorowski stated that the nominee is paid around $150,000. The front of house managers are paid around $50,000 and the customer service representatives are paid around $28 ph.
At the hearing the Tribunal asked Mr Komorowski what the difference was between what the nominee does as a business owner and what he does as a Facilities Manager. Mr Komorowski stated that when they started the business, both the nominee and he thought the nominee would be able to stay in Australia on his partner visa. The nominee had extensive experience in the business, and they could not afford to employ anyone else. Mr Komorowski also stated that it was a natural choice for the nominee to take this position. If, at the time they had any doubts about the nominee’s ability to remain in Australia, Mr Komorowski would not have invested his savings into the business. Further, it was 3 years later that the nominee’s visa was rejected.
At the hearing Mr Komorowski was asked about the business’s turnover and he stated that first 6 months of this financial year it has been tough, but business picked up in January 2021 and they are now nearly fully occupied. During the last 2 months they have had so many enquiries for workstations, so they have had to send them to a competitor. However, they do cooperate amongst themselves. Mr Komorowski added that Westfield has approach them to convert some space into a business centre as had the Holiday Inn and for both of these opportunities they would work in cooperation with Workspace.
At the hearing the nominee stated that he is the Facilities Manager of the business as he looks after each of the centre’s facilities making sure they are ready for new clients to come in and they comply with regulations, particularly recently COVID regulations. He looks are the centre team by having daily briefings about what is happening in the day such as: tours for prospective clients; meeting room bookings; being COVID ready; issues and highlight any hazards in the centre. The nominee meets with front of house managers who roster and supervise the front desk, as they support him with customer services and client enquiries. In the afternoon he does the accounts and looking at expansion, business acquisitions and partnerships as the business has a pipeline of new opportunities which include partnership with other industry service provides and other spaces. The business is now running at full capacity, so they are trying to find space for prospective clients. He also looks for new opportunities in other type of spaces. He works on potential expansion and prepares a file which contains: a feasibility report; floor plans; and forecast including cash flow reports.
The nominee stated that he has overall responsibility for the supervision of staff; finding other business opportunities; preparing business plans/case for new business opportunities whether with partners or new spaces; operational process including policies and procedures; software specifications for infrastructure such as photocopiers; and he oversights and works with all external contractors. The nominee is responsible for customer relationships including the negotiation of leases and client retention by checking in with customers to make sure they are happy. Recently a large part of his day is taken up in ensuring that cleaning is completed properly as all office spaces have to be COVID safe and compliant.
At the hearing the nominee stated that client requirements have been changing and there is more demand for more flexible workspaces. Clients no longer want to commit to a long tern leases as they want intermittent access which creates more work for the business to facilitate that flexibility as there are more clients using the same space even if it is not at the same time. In relation to OH&S he holds monthly meetings with the team to discuss OH&S issues, as well as, monthly audits. He also ensures that the OH&S manuals are up to date and arranges emergency drills. He also prepares written information for the clients on OH&S matters.
The nominee stated that he also discusses with Mr Komorowski on how to make the centres more useable, flexible and accessible for clients.
A the hearing the Tribunal asked the nominee what was the difference between what he does as a business owner and what he does as a Facilities Manager and the nominee stated that the work he does as a business owner is strategy and moving the business forward and it is done outside of the business hours. During business hours he works as a facility manager ensuring that he is seen by the clients at the centres as a senior manager to give clients confidence about the business’s service. If he is in the centre then he can deal with any client issues straight away as, unlike their larger competitors, the do not out source everything but instead deal with it themselves on the spot such as issues with accounts. The nominee stated that he has the authority to fix issues. The other staff are part time so if he was not in the centres there would be no continuity. For example when a new clients moves in they may be greeted by one staff member who won’t be there a next day so he has to ensure the office is running smoothly by ensuring; the office is cleaned and set up; internet ready; swipe keys are ready; OH&S and House rules have been provide, so the moving in protocols have been completed smoothly. Projects such as replacing photocopiers would take weeks to be finalised if a part time employee was responsible. As a facilities manager he is responsible for ensuring that the components of the facilities are of the best quality including the coffee which he ensures is the best coffee sourced from the right vendor. He organises local suppliers near the spaces.
At the hearing the nominee stated that as Facilities Manager he must be aware of the changing demands of customers driven by the digital revolution. For example, each customer needs to be able to log on to the internet suing their own accounts and he must ensure the security and privacy of the clients use of the internet. The business’s clients are changing including more millennials who ant to see spaces that are more sustainable with recycling and environment friendly practices. There is also more demand for flexibility. He also stated that COVID pandemic has accelerated these change sand he as a Facilities Manger must a be across all of these changing demands.
At review the Tribunal had more evidence before it than the delegate as to the operation of the applicant’s business and the tasks performed by the nominee and other employees. Although the nominee’s duties and responsibilities are not a perfect match for those set out in ANZSCO for the position Facilities Manager, the Tribunal is satisfied on the evidence that the nominee does perform a number of duties relevant and equivalent to those listed in ANZSCO, particularly around organising, controlling and coordinating the strategic and operational management of buildings and facilities; and creating and sustaining a safe and productive environment for occupants.

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 provided a signed contract of employment dated 30 May 2021. 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) and (12).
As the applicant is not a party to a work agreement, 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.
In this case, the nominated occupation is Facilities Manager ANZSCO 149913. This occupation is classified as Skill Level 2 in ANZSCO. All occupations which are classified in ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b) of the Act: IMMI 13/137. In the circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) of the Act are met and the nominee is exempt from having to satisfy the labour market testing requirements in s.140GBA of the Act.
For these reasons, the labour market testing requirements in s.140GBA of the Act are not applicable.
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.

Namoi Dougall
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 2307

16 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

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