ARX Consulting Engineers Pty Ltd (Migration)

ARX Consulting Engineers Pty Ltd (Migration) [2017] AATA 3073 (22 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  ARX Consulting Engineers Pty Ltd
CASE NUMBER:  1602371
DIBP REFERENCE(S):  BCC2015/3936974
MEMBER:Alison Mercer
DATE:22 December 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 22 December 2017 at 1:33pm

CATCHWORDS
Migration – Standard business sponsor – Subclass 457 – Position description corresponded to occupational description as set out in ANZSCO – Complied with ANZSCO duties – Sits within a specialist technical business – Genuine need for nominated position – Will genuinely carry out tasks in ANZSCO as specialised field

LEGISLATION
Migration Act 1958, ss 140GB, 140GB(1)(b), 140GB(2), 140GBA, 140GBA(5) and 6, 245AR(1), 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 457.223(6), cl 457.223(4); rr 1.13A, 1.13B, 2.57A, 2.72(3)-(12), 2.73, 2.73(1A)(a), 2.73(1A)(b), 2.73(2),(3),(4), 2.73(4A),(5),(9), IMMI 09/113, IMMI 13/028, IMMI 17/060, IMMI 13/136, IMMI 13/137

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 10 February 2016 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, ARX Consulting Engineers Pty Ltd (ARX) applied for approval on 18 December 2015 for its nominated occupation of ICT Support Engineer. 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), which requires that the position associated with the nominated occupation is genuine. The delegate considered that the Australian and New Zealand Classification of Occupations (ANZSCO) dictionary occupational description for an ICT Support Engineer indicated that it was a high level, specialised role that made strategic contributions including scheduling and conducting quality audit inspections, analysing and reviewing systems, data and documentation, identifying variations and potential high risk areas in securing adherence to standards and procedures and a list of other tasks. The delegate found that, given the far reaching impact of this technical and specialised role, it was typically associated with organisations operating within a competitive and complex business environment, with a significant number of staff, resources, services/product lines and client commitments.
The delegate stated that he had reviewed the documents provided by the applicant and noted that some of the duties of the nominee required a high degree of autonomy and strategic input into the business. However, when considered these in the context of the scope and scale of the business, the delegate was not satisfied that the business was operating at a level that would indicate that the nominated position was genuine. In so finding, the delegate stated that he had considered the information provided about the applicant’s operating environment, current practices, staffing, current and immediate future client commitments and demonstrated financial position. He gave limited weight to the applicant’s future growth projections as he found they were unable to be independently verified. Ultimately, the delegate was not satisfied that the nominee was likely to be actually performing the full breadth of duties as defined in ANZSCO for an ICT Support Engineer.
The Tribunal received a review application on 25 February 2016. It was made on the applicant’s behalf by Mr Dobrica Milicevic, a director of the company. The review application was accompanied by a copy of the delegate’s decision and an authority by which Mr Milicevic appointed a registered migration agent, Ms Danijela Jakovljevic, as the applicant’s representative and authorised recipient for correspondence.
On 3 April 2017, the applicant’s agent provided a number of documents in support of the case, being:

ARX technical documentation document as a sample of the work undertaken by the nominee, Mr Filip Markovic (which had been edited in places to remove commercial-in-confidence material) as part of his position description duties;
job activity summary showing the applicant’s recent projects; and
statements from Mr Milicevic (the applicant’s director), Mr Markovic (the nominee) and Mr Predrag Gudelj, head structural engineer for the applicant.

In his statement, Mr Milicevic makes the following points (in summary):

as the founder and director of the applicant, he wanted to explain why the nominee and current employee Mr Markovic was invaluable to the ongoing success of the company;
in 2011, he (Mr Milicevic) was working as a structural engineer for one of the largest civil engineering companies in Australia. His experience in engineering and team management led him to believe that many common industry practices could be improved and in that same year, he and his wife decided to start their own structural engineering consulting company from the ground up. Their aim was to create a niche in the market by providing better services and operating more efficiently than their competitors. Adaptability and a willingness to innovate were essential in this attempt;
the civil engineering industry was changing at an ever increasing rate, requiring rapid adaptation as clients demanded faster turnarounds and more involvement in their projects. The utilisation of new software tools and the continual education of employees were key factors in the race for improved techniques and streamlined processes. Software tools regularly became increasingly complex and intellectually demanding. Information technology and security were central to the success of the applicant;
in 2013, the applicant’s software demands surpassed the knowledge and experience of its structural engineers. As a result, the applicant sought professional IT assistance and advice externally. Although they were initially able to resolve the IT problems they encountered, at the end of the financial year, there were a number of issues finding IT professionals outside the business who were suited to its needs;
these issues eventually led to the applicant company’s first loss of intellectual property: as a result of data mismanagement, structural templates belonging to the applicant were leaked to competitors. This was a major setback that demanded risk and vulnerability assessment and the development of new security procedures. Accordingly, the applicant sought a full time IT professional, rather than an external contractor;
of all the candidates interviewed, the nominee Mr Markovic was the standout candidate due to his vast experience in the field generally and specifically in the ICT role. Unfortunately due to his visa restrictions, he was unable to work for the applicant full time. Following a second round of interviews, the company made a decision to employ Mr Markovic in the role on a part time basis and offer to sponsor him for a subclass 457 visa in the hope that he could be later employed full time. Once Mr Markovic finished his studies, the applicant immediately offered him a full time position;
since Mr Markovic was employed in March 2015, the company had experienced marked improvements in efficiency, client relations and security. Mr Markovic had developed new security protocols and was responsible for the ongoing technical education of the applicant’s employees. Moreover, Mr Markovic was developing a new Project Tracking Tool which would enable us to rival major companies on the market;
these advances in ICT infrastructure in the past 2 years and the associated economic growth for the applicant were a major factor in the recent decision to expand the company and move it to a new larger office. Last month, 2 new civil/structural drafters were employed by the applicant and there were plans to further expand the workforce in the next 6 months. ICT innovations had gifted the applicant a competitive edge in the market and this had contributed greatly to its growth;
the Department refusal of the nomination of Mr Markovic for the position of ICT Support Engineer was a setback and Mr Milicevic felt that the decision was a generic explanation citing an incongruence between the nominated position and the scope and scale of the applicant’s operations. Mr Milicevic strongly refuted this and was surprised that the delegate did not ask for further supporting information or clarification about the nominated position;
the Tribunal was asked to consider the information gathered by Mr Milicevic, notably a website which succinctly explained the duties typically performed by ICT Support Engineers, indicating that ‘ICT Support and Test Engineers advance procedures and strategies to support, manage and test technical quality systems. They should have technical knowledge of computer, software and programmes and strong analytical and problem solving abilities. Quick summary: … starting salary $40,500 P/A, Senior salary $65,000 P/A, Average salary: $50,000 P/A. Wages will vary according to your level of skill, experience and employer. Employment level: 5,400 as of November 2012 (Projected employment levels in 2017 of 5,500)… Average weekly hours… worked for a full time ICT Support and Test Engineer is 38.5 hours. Employment by region: the top 3 regions for employment… include: NSW 45.3%, VIC 26.7%, QLD 9.0%... Employment trends… Employment for ICT Support and Test Engineers has risen by a rate of 45.3% over the past 5 years and is expected to grow slightly through 2017… Employment growth… total employment growth over the past 5 years for male and female, employed part time and full time, is 2,300: Mr Milicevic’s perspective, with his intimate knowledge of the business, this information outlined exactly what the nominated position was about. The applicant needed a professional to be employed full time to manage, test and improve its ICT systems. The business could not possibly operate on a day to day without the latest software, security protocols and web infrastructure. The applicant needed an experienced ICT Support Engineer who could and would regularly and proactively manage the business ICT infrastructure;
Mr Markovic had proven himself a vital asset in this position and the applicant was more than satisfied with his performance. Creating the ICT Support Engineering role was a business decision made based on Mr Milicevic’s extensive experience, research and information gathered from connections in the industry;
in relation to the scale of the applicant’s business, Mr Milicevic stated that a single ICT Support Engineer was not beyond the scale of its operations. Security mismanagements and the inefficiencies experienced in the past clearly indicated that the business would be adversely affected if the applicant did not employ an experienced ICT Support Engineer; and
as explained in the material originally provided to the Department, the applicant business could not possibly compete with larger companies in the industry if it was not better than them in some way. Approval of the nominated position would protect the applicant business and support it in the endless competition of small businesses against large corporations.

In his statement, the nominee Mr Markovic made the following points (in summary):

he was a working ICT Support Engineer with over 8 years of experience in the industry and close to 3 years specifically working as an ICT Support Engineer for the civil engineering department of the applicant’s business. He had the knowledge and experience to meet the applicant’s IT requirements;
the key responsibilities of his position there included the building, maintaining and expanding IT infrastructure which was reliable, efficient and secure. With radical changes to the applicant’s IT infrastructure during the past 2 years, he had managed to greatly improve these key aspects. This had required the development and deployment of many new procedures, scripts and software;
an example was the deployment of Windows Server 2012 R2 in failover cluster, which together with Network and power redundancy ensured zero downtime, which was necessary considering that the server was hosting Autodesk Revit Server, Microsoft SQL Server and also acts as DC/DNS/DHCP/WSUS. Implementation of EMC Avamar acted as backup and a disaster recovery solution for risk free data solution. Moreover, with the expansion of IT infrastructure, security was essential. With Cisco firewall, and HP IDS appliance specifically configured for the applicant’s needs, they were managing the top grade level of network security and monitoring. These improvements, in addition to regular risk and vulnerability assessments, made the applicant’s IT infrastructure extremely secure by all security standards;
furthermore, he was regularly developing and upgrading custom scripts suited specifically for the applicant’s engineering team, which significantly increased their productivity. The project tracking system he had implemented was an example of a solution which he had developed specifically to elevate customer involvement in projects. Implementation of Cisco VPN was also one of the core components in the new IT infrastructure, as it enabled out of office server access which was essential to many staff members;
he believed that the structured, stable and well suited IT infrastructure was imperative for the applicant’s efficiency and prosperity. Given the above, plus comprehensive staff training, he was ensuring that the applicant’s IT infrastructure was at its best;
enterprise IT infrastructure was an ongoing work in progress because of the constant software customisation, changes in technology and new security threats. As an ICT Support Engineer, this meant that he was required to regularly undertake all the tasks set out in ANZSCO for the occupation; and
a business with a significant number of employees would have several employees in this position, or employ additional specialised ICT professionals (such as an ICT Security professional etc). This makes the ICT Support Engineer role perfect for smaller businesses as it includes some of the tasks that were often covered by other specialised ICT roles.

In his statement, Mr Gudelj states (in summary) that:

as head structural engineer at the applicant, he supported the nomination of Mr Markovic for the position of ICT Support Engineer;
as could be seen from documentation provided by the applicant, IT problem solving was just part of what Mr Markovic brought to the team. Ongoing software education of the team by him had also had a tremendous effect on the way they worked and operated;
furthermore, every one of Mr Markovic’s duties, which included servers and workstations upgrade/maintenance, website and web portal development/maintenance, reflected on Mr Gudelj’s department as well on company-client relations, communications and services presentation;
Mr Markovic’s commitment and approach to education and problem solving made the applicant’s engineering team operate significantly above the industry average. His work improved the applicant’s competitive advantage through efficiency. He believed that Mr Markovic’s role had strengthened the applicant’s place in the industry and had even given it a competitive advantage over its many rivals. He firmly believed that without a full time IT Support Engineer, the applicant’s efficiency would clearly be affected and they would have difficulty competing with bigger companies; and
therefore, Mr Markovic’s presence in the office had irreplaceable value for Mr Gudelj and all his fellow engineers and drafters, and he asked the Tribunal to take into account the team’s high IT demands and enable it to retain Mr Markovic.

On 13 June 2017, the applicant’s agent provided additional material to support the case, being a letter from the applicant’s accountant and a legal submission from the agent.
The letter dated 17 April 2017 from JAS Accountants states that the accountant had acted as accountant and tax agent for the applicant for the last 6 years and could verify that the applicant was solvent and trading profitably. He further states that it is able to sustain all employees, including the nominee’s salary of $60,000 per year. He states that he has recently completed the budget for the 2017 year and factored into this expenses plus on costs and had forecast that these would not have any detrimental effect on the applicant’s projected net profit, but should in fact enhance it.
In her submission dated 13 June 2017, the applicant’s agent argued that the reasons provided by the delegate for finding that the applicant did not meet r.2.72(10)(f) appeared generic and did not reflect a genuine understanding of the nomination application. There was also no effort made to gain any further information from the applicant about either the nominating business or the nominated position. It was submitted that the additional information now provided to the Tribunal provided a more detailed picture of the business and nominated occupation in any case. Although the delegate attributed limited weight to the projected business growth (and thus the requirement for the position), the additional evidence showed that the applicant business was not only genuine but had been modest about its potential for growth, in relation to which the nominated position had been, and would be, crucial. She drew to the Tribunal’s attention the fact that the applicant’s list of projects on foot from January 2016 to March 2017 was 2,960, which was far above the average for a company of its size. This had increased over the last 12 months and the director Mr Milicevic attributed this mostly to the employment of Mr Markovic in the nominated position since approximately March 2015. In this period, the applicant’s number of projects had increased by 39%.
The agent submitted that the Tribunal should also give weight to the accountant’s letter confirming the applicant’s financial capacity to honour its undertakings to the nominee (as it had done to date for him and all other employees). She further noted that the business had not only increased the number of its projects and its profitability, it had moved to larger premises and created another new position for a structural drafter and advertised for another structural engineer. All of this indicated that the business was growing and that the director had been correct in his assessment of future growth and the business’ need for the nominated position to utilise new software tools and continuously educate employees, which were key factors in the applicant’s business model. It was submitted, given the detailed information provided, that the delegate had interpreted the ANZSCO occupational description for an ICT Support Engineer, and the Department’s Procedures Advice Manual (PAM3), in a very restrictive way to conclude that the position was not genuine. It was strongly asserted by Mr Milicevic on behalf of the applicant that the position associated with the nominated occupation was genuine.
On 8 September 2017, the Tribunal conducted a callover, the aim of which was to ascertain whether the applicant’s case was ready to be actively considered and/or set down for hearing. On behalf of the applicant, Mr Milicevic and the agent attended the callover and discussed with the Presiding Member the additional updated documentation it could provide to demonstrate that it met all of the criteria in r.2.72 (not only r.2.72(10)(f)). The Tribunal also discussed with them the fact that as of 19 April 2017, the list of skilled occupations that could be nominated pursuant to r.2.72 had been amended to remove some occupations from the list and to add occupational restrictions (known as caveats) to others. The Tribunal noted that for the occupation of ICT Support Engineer to now be approved, it had to be established that the position required a minimum of 2 years of relevant work experience. Mr Milicevic of the applicant and his agent acknowledged this new requirement and indicated that they believed the position that they had nominated met this requirement. They confirmed their written and documentary evidence to date, and Mr Milicevic reiterated to the Tribunal that the nominee was fulfilling a crucial role in the applicant business and had contributed significantly to its ongoing growth. At the conclusion of the callover, Mr Milicevic and his agent provided the Tribunal with profit and loss statements for the 2013/14, 2014/2015 and 2015/16 financial years for the applicant, and a year to date sales statement for the period July 2017 to September 2017. The Tribunal indicated that it would shortly write to the applicant formally pursuant to s.359(2) of the Act to request the applicant to provide updated information demonstrating how it met all of the criteria set out in r.2.72.

The Tribunal did so on 11 September 2017. On 15 September 2017, the Tribunal received a response from the applicant’s agent which included:

further statement dated 15 September 2017 from Mr Milicevic;
tax returns for the ARX Consulting Engineers Trust for 2015/16 and 2016/17 financial years;
Sales Register Detail [All Sales] for the applicant for period 1 July 2017 to 15 September 2017;
ASIC certificate of registration for Geohub Pty Ltd, dated 3 July 2017;
employment agreements between the applicant and a named Geotechnical Field Technician (full time) dated 11 July 2017; and between the applicant and a named Senior Geotechical Engineer, dated 27 June 2017;
organisational structure chart for the applicant and GeoHub for 2017;
letter from the applicant to the nominee Mr Markovic, dated 18 July 2017, advising of reviewed remuneration of $65,000 plus superannuation effective 17 July 2017;
PAYG payment summary statement for the nominee from the applicant for 2016/17; and
payslip for the nominee, 8 September 2017.

In his statement, Mr Milicevic indicated that (in summary):

it was a necessity for the applicant to have an experienced ICT Support Engineer onboard, with at least 3 years of work experience in a similar environment;
based on the company’s growth (noting that the company had employed 3 more engineers since the first submission, in addition to those employed to replace those who had left the company), its complex organisation chart and the support needed for its daily operations, a person with less experience would probably be detrimental to the applicant’s operations;
the nominee Mr Markovic’s input into the company’s growth should not be disregarded and hence he had had 3 salary reviews in the last 2 years with the latest increasing his annual salary to $65,000 plus superannuation, which Mr Milicevic believed was above average for the nominated position;
the company’s recent tax returns (noting that the one for 2017 had not yet been lodged, but was available in draft) confirmed the company’s growth, and year to date figures from MYOB for July to mid-September 2017 showed sales of $848,000, which Mr Milicevic extrapolated to estimate a 2017/18 turnover of approximately $4 million. He calculated the growth between the 2016 and 2017 financial years as approximately 40%, and anticipated that this would be exceeded in 2018;
in July 2017, he started a new sister company called GeoHUB and had invested $200,000 into the machinery required for its operations and employed 2 new staff to manage the operational side of the business. Mr Milicevic further stated that he had concluded that the time was right for the applicant to stop engaging subcontractors for soil testing and surveying services, and GeoHUB now performed those services. The operational side of GeoHUB started in mid-August 2017 and had made $30,000 in its first month, and Mr Milicevic estimated it would make approximately $400,000 in its first year of operation;
the plan for GeoHUB was to grow and supply services to a wider client base, which would enable it to bring in the same revenue of the applicant in the next 2 to 3 years;
the nominee’s input to the organisation of the company and performance in the daily tasks of the new employees was tremendous, and he had managed single handedly to save 2 hours of their time per day by introducing tracking/booking systems by utilising simple calendar options that Microsoft provides as part of the subscription for software previously purchased. The system he created and multiple templates for its operation was enabling the office engineer to issue in excess of 10 jobs per day while at the interview he had indicated that not more than 5 or 6 should be expected (which is the industry standard);
with 10 projects per day, the company simply did not have time to coordinate them without the applicant’s systems;
employees like the nominee were very hard to find. Mr Milicevic had tested the workforce in many ways to see engineers for the applicant and now GeoHUB and the skills shortage of experienced personnel in Australia was striking. He had used 2 major personnel agencies in Melbourne but even they were unable to find experienced engineers for him. Ultimately, it was due to Mr Milicevic’s personal relationship with another agency that enabled him to hire 2 staff for GeoHUB, but at an agency cost in excess of $20,000; and
it was reiterated that the nominee was a vital part of the applicant’s business.

In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
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, from having reviewed the documents on the Department’s file, that:

the applicant nominated an occupation under s.140GB(1)(b) (being ICT Support Engineer) and thus meets r.2.73(1A)(a);
the applicant identified the nominee, Mr Filip Markovic, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);
the nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);
the applicant identified the nominee, Mr Filip Markovic, in the nomination, thus meeting r.2.73(4)/(4A) and (5); and
the nomination included the location at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 263212), thus meeting r.2.72(4).

The Tribunal is therefore satisfied that 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.
The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. The approval ceases on 8 February 2021.
Accordingly, the Tribunal finds that 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.
As noted above, the Tribunal is satisfied that the applicant identified the nominee Mr Filip Markovic as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.
Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.

Requirements for existing subclass 457 visa holders

The criteria for approval of a nomination contain several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
As the Department’s records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.

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 written 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 Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation ICT Support Engineer (ANZSCO code 263212) and specified that the location at which the occupation was to be carried out was Caroline Springs in the state of Victoria, postcode 3023.
Accordingly, the Tribunal finds that 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. This section prohibits a person from receiving a financial benefit for sponsoring another person.
The Tribunal has reviewed the nomination application contained in the Department’s file and is satisfied that Mr Milicevic certified that the applicant had not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
Accordingly, the Tribunal finds that 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.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is 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 instrument IMMI 17/060, 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 Tribunal is satisfied that this is not the case here.
In addition, as raised with Mr Milicevic of the applicant and his agent at the call over, since the nomination application was lodged on 18 December 2015 and refused on 10 February 2016, exclusionary caveats have been introduced in relation to the occupations that can be approved for the purposes of r.2.72(10)(aa). These were initially introduced in written instrument IMMI 16/059, which took effect on 18 April 2017. As of 1 July 2017, IMMI 16/059 was superseded by the current instrument IMMI 17/060. Currently, note 1 of IMMI 17/060 provides that an ICT Support Engineer position is excluded from being approved under r.2.72(10)(aa) if the position does not require a minimum of at least 2 years’ relevant work experience.
The Tribunal is satisfied, having compared the position description provided to the Department by the applicant with the ANZSCO occupational description for an ICT Support Engineer, that the duties of the nominated occupation correspond to those of the occupation of ICT Support Engineer (ANZSCO code 263212). (A more extensive comparison is set out below in the Tribunal’s discussion of r.2.72(10)(f)).
The Tribunal further notes that the position description provided by the applicant to the Department states that the position requires a person who holds at least a relevant Bachelor degree qualification, or at least 5 years of relevant experience. The advertisements for the position provided to the Department by the applicant indicate that candidates with previous relevant experience were preferred, in addition to having a Bachelor degree or higher qualification. In addition, Mr Milicevic has indicated in his most recent statement that the position requires someone with at least 3 years of relevant experience in addition to formal qualifications. The Tribunal is therefore satisfied that the nominated position is not excluded by note 1 of IMMI 17/060 from meeting r.2.72(10)(aa).
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met.

Terms and conditions of employment

Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 (currently $250,000): r.2.72(10)(AB).
Based on the evidence before it, the Tribunal finds that the nominee’s current annual earnings consist of his base salary of $65,000 plus 9.5% superannuation as per the updated letter of employment dated 18 July 2017. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied 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.
The Tribunal is satisfied from the documentary evidence provided by Mr Milicevic and the applicant’s agent on behalf of the applicant that there is no Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.
Having regard to IMMI 09/113, the Tribunal is satisfied that there is no state or federal award for the occupation of ICT Support Engineer. Accordingly, the Tribunal must have regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.
The Tribunal has consulted a range of sources of information, including:

the Government’s Job Outlook website in December 2017 which indicates that the average weekly earnings before tax for ICT Support and Test Engineers are $1,726 before tax (or $89,752 annually, which equates to approximately $67,117 after tax and Medicare levy, assuming a marginal tax rate of 32.5% using ASIC’s Moneysmart website Australian income tax calculator): Payscale website ( report (accessed 22 December 2017) provides a salary range for a Test Engineer in Australia of $49,000 to $75,000, with the median salary being $62,000: for various full time ICT Support or Test Engineer positions in Melbourne listed on Seek.com.au as at 22 December 2017 where a salary range is given:
oJunior ICT Engineer in Melbourne CBD and inner suburbs – package of $69,500 (advertised 21 December 2017);
oManaged Services – L1 Service Desk Engineer - $25 - $29.99 per hour plus super (approximately $49,400 to $59,260 per year plus super) (advertised 29 November 2017); and
oSenior Systems Engineer Team Lead (Network Operations), Monash University - $96,230 - $106,221 plus super (advertised 21 December 2017).

The Tribunal is satisfied from the most recent salary survey information from Job Outlook, and advertisements from seek.com.au that the salary package attached to the nominated position is within the range of salaries for the occupation. While the third Seek position involves a significantly higher salary, the Tribunal notes that this appears to be a more senior role as team leader within a significantly larger organisation than the nominated position. Moreover, evidence from the other sources listed above indicates a broader salary range with a lower starting point and median range.
On balance, the Tribunal is satisfied that the nominee’s salary is no less favourable than those that would be offered to the relevant Australian equivalent.
The Tribunal is further satisfied that the original contract of employment dated 2 December 2017 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.
Accordingly, the Tribunal finds that 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 (currently $53,900).
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
The Tribunal is satisfied from the evidence provided that the nominee’s annual earnings are $65,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc).
The Tribunal is further satisfied that the nominee’s annual earnings exceed the TSMIT, and that (based on the market salary rate information assessed in paragraphs 53 to 55 above) 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 also be greater than the TSMIT. In particular, the Payscale salary range median figure is $62,000, which exceeds the TSMIT, as does the Job Outlook average weekly salary.
On balance, therefore, the Tribunal finds that the requirements of r.2.72(10)(cc) are met.

Certification under r.2.72(10)(e)

As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;
·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 written 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 IMMI 13/067; 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 IMMI 17/060.
From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
Accordingly, it is satisfied that 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.
As discussed above, the delegate was not satisfied that the nominated position was genuine, as he concluded that the position was unlikely to require the nominee to actually regularly perform the full breadth of duties set out in ANZSCO for an ICT Support Engineer, given the scope and scale of the applicant’s business.
From the evidence provided by the applicant to the Department and Tribunal, the Tribunal is satisfied that the applicant operates a structural engineering consultancy firm based in Melbourne which presently employs approximately 9 people (including the nominee) in addition to the 2 directors (Mr Milicevic and his wife). Of these 9 employees, there are 2 administrative staff, the nominated position of ICT Support Engineer, a Head of Engineering Services and 5 Design Engineers according to the most recent organisational chart provided in December 2017. In addition, the director Mr Milicevic has recently established a related company, GeoHUB, which provides soil testing and surveying services and which currently employs 2 staff.
The Tribunal has had regard to the ANZSCO occupational description for an ICT Support Engineer, as set out below:

UNIT GROUP 2632 ICT SUPPORT AND TEST ENGINEERS

ICT SUPPORT AND TEST ENGINEERS develop procedures and strategies to support, create, maintain and manage technical quality assurance processes and guidelines and systems infrastructure, investigate, analyse and resolve system problems and performance issues, and test the behaviour, functionality and integrity of systems.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
oscheduling and conducting quality audit inspections, and analysing and reviewing systems, data and documentation
oidentifying variations and potential high risk areas in securing adherence to standards and procedures
orecommending corrective action plans and improvements in the resolution of non-compliance with standards detected through monitoring and auditing of processes and procedures
ocommunicating, educating and liaising with users and management to ensure awareness and adherence to standards, procedures and quality control issues and activities
oassisting in troubleshooting, diagnosing, testing and resolving system problems and issues
odeveloping, conducting and providing technical guidance and training in application software and operational procedures
oanalysing, evaluating and diagnosing technical problems and issues such as installation, maintenance, repair, upgrade and configuration and troubleshooting of desktops, software, hardware, printers, Internet, email, databases, operating systems and security systems
otesting, identifying and diagnosing functionality errors and faults in systems, and programming code within established testing protocols, guidelines and quality standards to ensure systems perform to specification
operforming organisational systems architecture reviews and assessments, and recommending current and future hardware and software strategies and directions
ocreating and reviewing technical documentation such as procedural, instructional and operational guides and manuals, technical reports and specifications and maintenance inventory systems

Occupations:
263211 ICT Quality Assurance Engineer
263212 ICT Support Engineer
263213 ICT Systems Test Engineer
263299 ICT Support and Test Engineers nec

…

263212 ICT SUPPORT ENGINEER

Alternative Titles:
Support Analyst
Support Architect

Develops support procedures and strategies for systems, networks, operating systems and applications development, solves problems and provides technical expertise and direction in support of system infrastructure and process improvements, and diagnoses and resolves complex system problems.
Skill Level: 1

…

Given that the occupation of ICT Support Engineer is a subset of the ANZSCO Unit Group 2632 ICT Support and Test Engineers, the Tribunal accepts that not all of the extensive list of duties under the Unit Group heading would necessarily be carried out by an ICT Support Engineer, as some would be specific to the other subset occupations of ICT Quality Assurance Engineer, ICT Systems Test Engineer, and ICT Support and Test Engineers.
The position description provided to the Department by the applicant (confirmed by Mr Milicevic at the callover to be current) lists the following responsibilities for the nominated position:
Aim of the role:
·To use specialist knowledge in order to assist the business in ensuring its IT infrastructure can continue to support its operations effectively in view of new technology developments and new business requirements dictated by business growth;
·Assist the business to improve profitability and customer service by improving efficiencies in its IT infrastructure with the aim of helping to reduce time it takes to do common Civil and Structural engineering tasks;
·Assist business growth by contributing positive ideas;
Scope of the role:
·The scope of this role encompasses dealing with the full gamut of IT infrastructure within the business, including software, operating systems, hardware, communication, web technologies, storage, back up and database systems;
·Supporting the overall objectives and strategic direction of the business through cooperatively working with all engineering and managerial staff members;
Main duties
The main duties of this role include:
Regular analysis and review of the business IT systems and associated infrastructure
·To work in close liaison with management, engineering staff and general manager to understand business prerogatives and requirements;
·Undertake review and analysis of the server environment, backup infrastructure and systems, software application environment as well as other IT environments used within ARX
·Review new developments in technology and ensure efficiencies are introduced through installation and usage of updates to software, operating systems, communication software and all other relevant IT infrastructure;
Recommend and implement upgrades to meet ongoing and evolving needs of the business
·In line with the needs of the business and any identified systems or software weaknesses, research, evaluate and select appropriate upgrades
·Install all necessary upgrades/changes in order to ensure security and improve efficiency within the business;
·Deploy and configure software application changes for supported computer systems;
·Ensure upgrades have been appropriate integrated throughout the IT infrastructure and fix any problems that may arise;
·Provide training and ensure end users are proficient in understanding and effects upgrades may have had on their work flow
·Ensure all users follow any new procedures necessitated by upgrades in safeguarding systems and data;
·Contribute to automation creating efficiencies and to improve process improvement.
Analysing and diagnosing of system faults and technical problems
·Both proactively and in response to faults, analyse and fix any technical issues as they may arise;
·Escalate technical faults and issues to external providers if these are not able to be resolved in-house;
·Ensure fault resolutions have been recorded, analysed and changes implemented throughout the system so as to prevent any reoccurrence of same or similar faults;
·Ensure any necessary user training is implemented
Create ongoing improvements in the IT infrastructure to improve efficiencies, produce improved capabilities and mitigate risk factors
·Through regular analysis and data gathering establish risk factors within the business IT infrastructure;
·Mitigate these factors through establishment of new procedures, installation of upgrades or other software and through training staff to follow procedures as necessary;
·Maintain firewall;
·Adapt existing programs to meet user requests and new requirements;
·Maintain VPN and provide secured remote access to company’s network;
·Install or implement upgrades to servers;
·Improve internet connectivity efficiency;
·Improve web related technologies including the company’s website
Maintain IT infrastructure integrity and support ongoing and effective operation of all IT systems within the business
·Manage MS Windows server DC/AD, DNS, DHP, WSUS and MDT;
·Manage the backup server;
·Maintain projects portal;
·Maintain hardware such as plotters and printers;
·Implement network changes and maintenance routines;
Other duties
·To contribute to the overall growth and success of the company by proactively contributing ideas and areas for continuous improvement and development;
·Assisting in companywide IT projects;
·Keep abreast of new technologies through continuing self-development and learning;
·To maintain safe working environment by complying with procedures, rules and regulations;
·To contribute to team effort by working with others to achieve results as needed.
The Tribunal is satisfied that the position description above corresponds closely to the occupational description for an ICT Support Engineer as set out in ANZSCO, and also incorporates many of the duties listed under the broader Unit Group heading in ANZSCO.
As noted above, Mr Milicevic emphatically disagreed with the delegate’s conclusions that the scope and scale of his business did not require a person carrying out the full range of duties of an ICT Support Engineer. Having had the benefit of extensive additional documents and an opportunity to speak with Mr Milicevic at the callover, the Tribunal has formed the view that the nominated position does and would carry out the ANZSCO duties listed for an ICT Support Engineer. That is, the Tribunal is satisfied that the nominated position does involve developing support procedures and strategies for systems, networks, operating systems and applications development, solving problems and providing technical expertise and direction in support of the applicant’s system infrastructure and process improvements, and diagnosing and resolving complex system problems. Several examples were given of the nominee having done this by Mr Milicevic (director of the applicant), Mr Gudelj (head of engineering) and the nominee himself, which the Tribunal accepts.
Although a relatively small company (as acknowledged by Mr Milicevic), the financial reports provided to the Tribunal indicate that the applicant’s profits have significantly increased in the period spanning the 2014/15 to 2016/17 financial years and the year to date figures for 2017/18 indicate that this trend is continuing. Proof has also been provided that the applicant has employed additional staff since the time of the delegate’s decision and that it has substantial project work on its books. The Tribunal accepts Mr Milicevic’s evidence that the nominated position sits within a specialist technical business that has a high reliance on IT innovation in order to be competitive and efficient, and that contributions made by the nominee to date have assisted the applicant’s business to expand. It further accepts that the nominated position is the only 1 of its kind within the applicant’s business.
Accordingly, while the applicant company is relatively small in terms of the number of employees, the Tribunal is satisfied that it has a genuine need for the nominated position, and that the nominated position will genuinely carry out the tasks set out in ANZSCO for an ICT Support Engineer, given the applicant’s specialised field.
For these reasons, the Tribunal is satisfied that 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 a written instrument.
The Tribunal is satisfied that the applicant provided an updated letter of employment for the nominee dated 18 July 2017 to the Tribunal indicating that the nominee’s salary had been increased to $65,000 plus superannuation. The original employment contract was provided to the Department in December 2015, when the applicant’s salary was $60,000 plus 9.5% superannuation.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(h) are met.

Work agreements

Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
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.
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 IMMI 13/136. 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 is satisfied that the nominated occupation of ICT Support Engineer is a Skill Level 1 occupation and is thus exempt from labour market testing under IMMI 13/137.
For these reasons, the labour market testing requirements in s.140GBA 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.

Alison Mercer
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.

(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.

[2017] AATA 3073

22 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness