AUSTWIDE LASER PTY LTD (Migration)

AUSTWIDE LASER PTY LTD (Migration) [2017] AATA 2520 (3 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AUSTWIDE LASER PTY LTD
CASE NUMBER:  1611003
DIBP REFERENCE(S):  BCC2015/4005610
MEMBER:Antonio Dronjic
DATE:3 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 3 July 2017 at 11:20am

CATCHWORDS
Migration – Nomination of an occupation – Subclass 457 visa – Private Tutors and Teachers – Nominee’s sister is the owner of the sponsoring business – Position created to obtain migration outcome – Not a genuine position

LEGISLATION
Migration Act 1958 ss 65, 140GB, 140GB(2), 140GBA , 359, 359(2)
Migration Regulations 1994 rr 2.72, 2.72(10AA), 2.72(10)(c), 2.72(10)(f) , 2.73 , 2.72(3)-(12)
CASES
Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Visnumolakakala v Minister for Immigration [2006] FMCA 1209
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 20 July 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 applied for approval on 22 December 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10(c) and r.2.72(10AA) because the delegate was not 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 applicant applied to the Tribunal on 20 July 2016 for review of the delegate’s decision. The applicant was represented in relation to the review by its registered migration agent. With its application, the applicant provided a copy of the primary decision record. The nominated occupation in the nomination application is Private Tutors and Teachers nec (ANZSCO 249299).
On 17 August 2016, the applicant’s representative submitted:
·Legal submissions stating that the sponsoring business mistakenly used level 7 award in relation to nominee’s salary instead of level 12 award which provides for the annual salary of $60,131; and
·Copy Educational Services (post-secondary education) Award 2010.
On 10 February 2017, the Tribunal sent a letter to the applicant which contained a request to the applicant to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in regulation 2.72 of the Migration Regulations. The request was made pursuant to section 359(2) of the Act.
On 14 March 2017, the applicant’s representative submitted:
·Legal submissions stating that the nominee was granted work rights from the department on 21 November 2016 and immediately began developing curriculum and tutorial plans and that the business enrolled eight students at the beginning of 2017. The representative reiterated that the original application inadvertently reflected a pay rate for a level seven award instead of level 12 award and that the nominee’s salary was readjusted accordingly. It was further submitted that there is no set award for the private tutors and teachers (ANZSCO 249299) and that the business was unable to recruit suitable candidate from the Australian labour market; and
·Copy full time (award) Employment Contract between the sponsoring business and the nominee signed on 9 January 2017.
On 20 March 2017, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 30 May 2017.
Mr Donald Betts appeared on behalf of the sponsoring business to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
After confirming his authority to represent the sponsoring business in these proceedings, Mr Betts stated that is a Managing Director of Austwide Laser Pty Ltd. The company was registered in February 2005. The business is located at Carrum Downs, VIC. The main business activities are telesales of printer consumables, printers, data networking and caballing and sales training.
The Megamind Learning Institute (MMLI) was the company's business name from 31 August 2015. The sole company director and the sole shareholder is Ms Sivadharshini Velauthampillai (Tanya). She is nominee’s sister.
The MMLI uses the same business premises as Austwide Laser Pty Ltd telesales business. It is opened from 2.30pm to 7.30 pm. The MMLI commenced its operations in January 2016, by providing tutorial services to five clients. Currently, the centre’s client base fluctuates between 17 and 20 clients. Apart from the nominee who is engaged as a principal tutor, the business employs two additional tutors on a casual basis. Mr Betts is also a tutor but he is not paid for this work by the business. His child is one of the MMLI students. The other casual tutors are paid $29.00 per hour and work between 25-35 hours per week. The estimated turnover in 2016/17 financial year of MMLI is approximately $70,000. He stated that separate financial accounts are kept for MMLI from financial for Austwide Laser Pty Ltd. I requested that the applicant provides to the tribunal financial statements for both MMLI and Austwide Laser Pty Ltd.
The applicant commenced her training at MMLI in January 2016 and this training period lasted until she obtained work rights from the department in November 2016. Prior to obtaining work rights, the nominee was provided training by the sponsoring business and was not paid. She is currently paid $30.43 per hour and works between 38 and 40 hours per week.
The nominee came to Australia on 8 July 2015, together with her husband and two sons, as a holder of a visitor’s visa. The reason for her travel to Australia was her father’s funeral. The nominee’s mother and sister live in Australia and according to Mr Betts’ belief both of them are Australian permanent residents. Her sister is the sole business owner of Austwide Laser Pty Ltd. The nominee returned to United Kingdom on 23 July 2015 with her husband and younger child. The nominee’s elder son remained in Australia. He was enrolled into a private school in Australia.
The nominee returned to Australia in September 2015 and has remained in the country until present time. Mr Batts gave evidence that the nominee’s visa was subject to no work condition. I noted that he gave evidence that the nominee undertook training at the sponsoring business from January 2016 to January 2017. I inquired if she was allowed by her visa conditions to undertake training in Australia. Mr Betts responded that he is not certain whether she was or was not allowed to do so. He gave evidence that the nominee was financially supported by her husband from UK during the period she undertook training at the sponsoring business.
I observed that according to departmental movement records, the nominee had an 8115 condition imposed on her bridging visa granted on 23 December 2015. I explained the condition and the meaning of a business visitor activity to Mr Betts. I noted that undertaking training for 12 months is not included in the definition of business visitor activity.
Mr Betts than changed his evidence and stated that the nominee was conducting investigations during this period rather than being provided training by the sponsoring business. She conducted investigations as to what are the students required to achieve in Australia. She is trained educator and the business could not provide her with that type of training. She needed to understand how the company operates in Australia.
I noted that he changed his evidence only after I pointed out that the nominee was not allowed to undertake training at the sponsoring business. I raised the issue of his credibility as a witness in these proceedings and explain the consequences of findings that he may not be a credible witness.
I asked about the nominee’s relationship with the business owner and Mr Betts stated that the nominated person is the business owner’s sister.
I noted that MMLI commenced its operations in January 2016 and that this coincides with the time the nominee commenced her ‘training’ at the business. I further noted that prior to nominee’s arrival in late 2015; the sponsoring business was not involved in the provision of tutorial services. Mr Betts conceded this to be the case.
I raised the issue of sponsoring business being able to meet the requirement of cl.2.72(10(f) which requires that the position associated with the nominated occupation is genuine position. I raised my concerns that the position was created by the business to secure the visa outcome for the nominee who is the sister of the business owner. I further noted that prior to owners’ sister arriving in Australia; the sponsoring business was not involved in provision of tutorial services.
Mr Betts gave evidence that the sponsoring business advertised in August 2015 for the position of a principal tutor and that three persons responded, including the nominee. The business conducted an interview with the nominee and came to realisation that she is the best candidate for the job.
Mr Betts further stated that an Australian permanent resident with adequate qualifications and work experience responded to the advertisement but was not selected because he was asking for $65,000 to $70,000 in annual wages and the business could not afford to pay this amount. I noted that the nominee is offered $60,000 per employment agreement provided to the tribunal. Mr Betts stated that the other reason for not offering the employment to an Australian permanent resident was that he was unable to demonstrate that he could run the Institute.
He reiterated that the nominee is a valuable asset to the business. He stated in his evidence that the business did not advertise for this position since August 2015.
Mr Betts confirmed that he provided a letter to the department dated 17 June 2016 and that he has a copy of that letter before him. I drew his attention to the paragraph of this letter that stated that the nominee completed training and development phase; that the training included leadership development training ect. He disputed that the activities listed in the letter constitute ‘training’. I explained that this potentially constitutes a breach of condition 8115 to which her bridging visa was subject to and that may be relevant to the nominee’s visa application.
Mr Betts stated that the nominee obtained working with children clearance in late 2015.
I noted that, according to the publicly available information on the Institute’s web site, currently there are no timetables published by the Institute. He stated that the reason for that is that the numbers of students are ‘relatively low’. I observed that the institute has engaged services of two casual and one full time tutor for this, relatively low number of students.
The representative stated that the relationship between the business owner and the nominee was not disclosed to the department because the position was more important than the relationship and that there was no need to disclose the nature of this relationship to the department.
I granted the applicant until 6 June 2017 to provide further submissions and documentary evidence.
On 6 June 2017, the applicant’s representative submitted:
·Submissions stating that the issue of genuine position was address in the Report dated 17 June 2016 provided to the department with the visa application and that it is coincidence that the nominee is the sister of the business owner. It was further submitted that the nominee is no longer able to meet the criteria for permanent visa under the skill migration and will be happy to return to UK upon expiry of her subclass 457 visa if granted;
·Pay slips for Damosh Av, one of the casually employed tutors;
·Nominee’s payslips from January 2017 to 31 May 2017;
·Austwide Laser Pty Ltd Financial Statements for the year ended 30 June 2016; and
·Letter from Mr Betts dated 6 June 2017.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The tribunal notes that in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 the Court considered the meaning of r. 2.72(10)(f). The Court held;
With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation.
In considering whether the position associated with the nominated occupation is genuine, the tribunal has had regard to the Department’s Procedures Advice Manual PAM3. As regards the application of these policy guidelines, the tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1978-1980) 2 ALD 634. Indeed, in Visnumolakakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.
According to the departmental policy, the 457 program is designed to enable employers to address labor shortages by bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to “create a position” – for example, in order to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available.
Mr Betts stated in his evidence the nominee’s sister is the owner and the Director of the sponsoring business. He conceded that, prior to nominee’s arrival in Australia; the business was not involved in provision of tutorial services. The main business activities were telesales of printer consumables, printers, data networking and caballing and sales training. The evidence before me revealed that the business registered Megamind Learning Institute (MMLI) on 31 August 2015 which coincides with the nominee’s return from UK. The Institute commenced its operations in January 2016 which coincides with the time the nominee commenced her ‘training’ at the business. The nominee’s elder son remained in Australia and was enrolled into private school even before the nominee returned to Australia on 23 July 2015.
Despite not being required to undertake Labour Market Testing (LMT), the business advertised for the position August 2015. The evidence before me revealed that, despite receiving an application from Australian resident with adequate qualifications and work experience, the decision was made to offer the employment to the sister of the business owner. I do not accept the explanation provided by Mr Betts that the reason for not offering the employment to an Australian permanent resident was his/her request for higher salary or inability to run the Institute. After all, the position was for a principal tutor and not for the person who will ‘run the institute’. There were no further attempts to recruit the principal tutor from Australian labour market since August 2015. Based on the evidence before me I do not accept that the owner of the sponsoring business would entertain employing a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder in preference to her sister.
I do not accept the representative submissions that it is coincidence that the nominee is the sister of the business owner. On the contrary, I am satisfied that the business name MMLI was registered and the position created for the predominant purpose of securing the immigration outcome for the nominee because she is the sister of the business owner.
I have taken into account submissions provided by the applicant as well as documentary evidence submitted in support of the arguments that a position associated with the nominated occupation of a Tutor is a genuine position. I considered the evidence regarding the business’s turnover; the position description, the proposed employment agreement, the organisational chart and the financial documents submitted to the tribunal.
Based on the evidence before me I am satisfied that the main purpose of creating a position of a Principal Tutor within the business was to secure the migration outcome for the business owner’s sister. I am not satisfied on the evidence before me that the business ever intended to employ alternative person (other than Nominee).
Based on the evidence before me, I am not satisfied that the applicant has need for a person undertaking the occupation of a Principal Tutor and I find that the position associated with the nominated occupation is not genuine. For these reasons the requirements of r.2.72(10)(f) are not met. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Antonio Dronjic
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(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
(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 2520

3 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction