BK's Franchising Australia Pty Ltd ATF The Trustee for BK's Franchising Australi (Migration)

BK's Franchising Australia Pty Ltd ATF The Trustee for BK's Franchising Australi (Migration) [2019] AATA 1539 (26 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  BK's Franchising Australia Pty Ltd ATF The Trustee for BK's Franchising Australi
CASE NUMBER:  1708013
HOME AFFAIRS REFERENCE(S):           BCC2016/4004572
MEMBER:Danielle Galvin
DATE:26 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 26 February 2019 at 3:08pm

CATCHWORDS
MIGRATION – nomination refusal– Finance Manager – the position is not a genuine position – the nature of the role appear exaggerated in the context of the size of the business – inconsistencies in the financial material– Decision under review affirmed

LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 March 2017 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, BK’s Franchising Australia Pty Ltd, ATF the Trustee for BK’sFranchising Australia Unit Trust, was approved as a sponsor on 13 January 2017. The applicant applied for approval of the nomination on 28 November 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) of the Migration Regulations (the Regulations) on the grounds that the delegate was not satisfied that the nominated position is what it purports to be and therefore the nominated occupation was found not to be genuine. The delegate was not convinced that the nominee would be performing regularly the full breadth of tasks defined in ANZSCO’s description of a Finance Manager.
On 12 April 2017 the applicant sought a merits review of the decision.
On 18 September 2018 the Tribunal wrote to the applicant and its migration agent seeking current and updated information in support of the merits review.
On 2 October 2018 the migration agent forwarded to the Tribunal various documents which shall be referred to below.
The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The Tribunal received oral evidence from Mr Brendan Kingwill, managing director of the applicant, and Ganesh Kumar Shannogam, the nominee.
The applicant was represented in relation to the review by its registered migration agent, Joseph Yao.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
POSITION MUST BE GENUINE
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
Identity of the Sponsor
In support of the initial application, the sponsor provided to the Department a profit and loss statement for BK’S FRANCHISING AUSTRALIA UNIT TRUST noting that the trustee was BK’S FRANCHISING AUSTRALIA PTY LTD. Prior to the provision of this document, there had been no mention of a trust arrangement or that the sponsoring legal entity was acting in its capacity as trustee. The Department however, began to communicate with the sponsor on this basis as is evidenced by the Department letter to the sponsor, as trustee, dated 24 January 2017.
On 12 April 2017 BK’S FRANCHISING AUSTRALIA PTY LTD ATF THE TRUSTEE FOR BK’S FRANCHISING AUSTRALIA UNIT TRUST made an application for the review of the Department’s decision.
The Tribunal wrote to the review applicant seeking updated and current information in support of the review. The review applicant responded and submitted ASIC extracts for BK’S FRANCHISING PTY LTD and BK’S FRANCHISING OPERATIONS PTY LTD and two profit and loss statements for BK’S FRANCHISING PTY LTD for the financial years 1 July 2016 to 30 June 2017 and 1 July 2017 to 30 June 2018.
An updated organisational chart was submitted for “BK’S FRANCHISING” which noted that there are various related businesses that form part of what appears to be a family run venture. Although the applicant is listed as ‘BK’S FRANCHISING AUSTRALIA PTY LTD AFT THE TRUSTEE FOR BK’S FRANCHISING AUSTRALIA UNIT TRUST the chart reflects various entities and it is not clear to the Tribunal how the various legal entities fit together or which entity is the employer for the listed employees, including Mr Kingwill as Managing Director and Tegan Kingwill as Business Operations Manager.
At the hearing of 4 December 2018 Mr Kingwill, the migration agent and the nominee attended. Mr Kingwill described the .business as developing and improving its structure following the advice of a franchising expert. He stated that the need for marketing and financial assistance was part of this process. When asked to explain the business structure Mr Kingwill confirmed that BK’S FRANCHISING OPERATIONSPTY LTD is the trading arm of the business and he believed was the nominator. The Tribunal notes that this oral evidence is inconsistent with the material submitted by way of documentation as the primary application and review application list the applicant as BK’S FRANCHISING AUSTRALIA PTY LTD AFT THE TRUSTEE FOR BK’S FRANCHISING AUSTRALIA UNIT TRUST. The Tribunal has concerns that Mr Kingwill, as the Managing Director, was not able to clearly articulate to the Tribunal how the various entities interacted and what their functions were.
Mr Kingwill further stated in his oral evidence that he is the Managing Director of all related entities and his daughter, Tegan Kingwill, is employed by BK’S FRANCHISING OPERATIONS PTY LTD. Mr Kingwill believed that all employees were engaged by this company. The Tribunal notes that the documentation submitted indicated that the trustee of BK’S Franchising Australia Unit Trust, BK’S FRANCHISING AUSTRALIA PTY LTD, is the nominated employer, which differs from Mr Kingwill’s verbal evidence. Mr Kingwill also advised that the nominee is currently working part time and that the other employees worked on a casual basis.
Following the hearing Mr Kingwill was invited to provide further material to clarify who was to employ the nominee and on what basis.
In response, the migration agent, submitted a self-generated payroll activity summary for the period 1 July 2017 to 30 June 2018 for “BKs Franchising Australia” together with superannuation accruals for the same business. ASIC extracts for BK’S FRANCHISING OPERATIONS PTY LTD and BK’S FRANCHISING AUSTRALIA PTY LTD were submitted together with a copy of the BK’s Franchising Australia Unit Trust deed which confirms that the trustee for the trust is BK’s Franchising Australia Pty Ltd. However, based on the information provided, the Tribunal finds that the evidence of Mr Kingwill is at odds with the documents submitted in relation to the employment of the nominee in so far as identifying the contracting party as a legal entity. It appears, from the contract of employment, the financial documents referring to wages and the review application form itself, that the trustee company is the intended sponsor and employer.
An organisational chart of the Kingwill business structure was also submitted revealing the various businesses associated with Mr Kingwill. The Tribunal notes that r.2.72(11) provides that an Australian business sponsor is able to engage the nominee as an employee of an associated entity under a written contract of employment (r.2.72(11)(d)). However, the information before the Tribunal does not clarify which entity acts in the capacity of employer of the nominee.
The role of a Finance Manager
In the initial application to the Department, the applicant nominated the position of Finance Manager (ANZSCO 132211) and identified that the nominee, Ganesh Kumar Shanmugam, would work in this position 38 hours per week on a salary of $70,000.plus super. The sponsor operates a Franchise System of take away venues.
ANZSCO defines the role of a Finance Manger as one who plans, organises, directs, controls and coordinates the financial and accounting activities within organisations. The tasks include :
·Determining, implementing, monitoring, reviewing and evaluatingbudgetary and accounting strategies, policies and plans in consultation with other Mangers
·Providing financial information and interpreting the implications for business performance and funding needs
·Coordinating the development, implementation and monitoring of accounting systems
·Directing the preparation of financial reports that summarise and forecast the organisation’s financial position such as income statements, balance sheets and analyses of future earnings and income
·Assessing capital finance proposals and the financial status of operational projects
·Advising on investment strategies, sources of funds and the distribution of earnings
·Delivering long range profit forecasts, budgeting and financial reporting
·Ensuring compliance with financial legislation and standards.
The Department was provided with a contract of employment signed by the nominee and dated 20 September 2016 and a further contract of employment signed by the nominee, which identifies BK’S Franchising Aust. P/L as the employer, dated15 February 2017. The second of these contracts included a list of “Key Duties” which the nominee was to perform. Mr Kingwill confirmed, at the hearing, that the latter contract was the relevant one. On this basis the Tribunal has relied on this document as the contract of employment. The listed duties in that document included the tasks of analysis of daily financial activities and provide advice and guidance to upper management on future financial plans; provide financial reports and interpret financial information to managerial staff whilst recommending courses of action; maintain financial health of the organisation, exercise financial control of the business including managing staff salaries, the ATO, expenses cash-flow and credit control; drafting and reviewing letters and reports, including financial data, financial modelling and forecasting supervising, leading and mentoring a large team and correspond with various other departments, discussing company plans and agreeing on future paths to be taken.
The Department was also provided with an organisational chart which listed Mr Kingwill as managing director, Tegan Kingwill as Business Operations Manager, a manufacturing and logistics manager, a marketing manager and a finance manager. According to Mr Kingwill the managers all deal with Jessica Kingwill as Business Operations Manager. Further staff include a receptionist, an administrator and a manufacturer so that there are 8 employees in total.
The Department was provided with a document dated 20 February 2017 which provided further details of the proposed position. The tasks to be performed accorded with those detailed in the ANZSCO description for the position. The document further states that the finance manager is responsible for the headquarters management team and franchise and franchisee staff. The BK’S Franchising Organisational Chart for 2018 listed 3 BK’ takeaway outlets one of which appeared to be franchised in Korumburra. The status of the noted outlets in Trafalgar and Warragul is not stated. The identities of the franchise teams were not provided to the Tribunal nor was evidence of communications between the nominee and the franchise teams. The size of the business does not support the claim that various teams are operating or exist. Four of the employees have management titles, however, there is insufficient evidence to support a finding that there are teams to be managed given that 8 people are employed by the business.
The claim in the contract of employment that the nominee will be leading and mentoring a large team and corresponding with other departments suggests a business operating at a greater scale than that of the sponsor. The claim that advice would be provided to upper management, presumably, Mr Kingwill, was confirmed at the hearing by the oral evidence of Mr Kingwill and the nominee. However, the claims of the nature of the role appear exaggerated in the context of the size of the business.
A revised Position Description for Finance Manger was submitted to the Tribunal post the hearing and made various claims as to the role the nominee would be performing. In particular there is a reference to “Oversee operations of the finance team” and “correspond with various other departments, discussing company plans”. The Tribunal notes that given the small number of employees and the comments of Mr Kingwill that the employees all work on a casual or part-time basis the Tribunal is not satisfied that that claim is supported on the evidence presented.
The nominee gave evidence stating that he analysed information submitted by franchisees and prepared the financial documents with Mr Kingwill for the ATO. The nominee advised that he used the “XERO” computer program to prepare financial documents. Whilsy evidence was given by the nominee orally that he prepared the financial statements with Mr Kingwill, evidence of documentation between the nominee and franchisees was not submitted to the Tribunal in support of the contention that there had been any analysis of material submitted by franchisees.
A curriculum vitae was not submitted for the nominee and the Tribunal has not been provided with the qualification details of the nominee. However, the nominee stated that he had achieved degrees in Commerce and Business technology. The Tribunal has been unable to verify these claims by reference to supporting evidence such as a copy of the degrees.
Payment of proposed salary
The nominee’s PAYG statement was submitted for the financial year ending 30 June 2018 stating that he earned $53,062 for that period. The Profit and loss statement ending in the same year states that the wages for BK’S FRANCHISING PTY LTD were $114,443 and the companies income was $730,470.This would leave a balance of funds available to meet the wages of 7 other employees of $61,381 for that financial year. Mr Kingwill gave oral evidence that the employees were either part time or casual. He did however, state that Tegan Kingwill earned approximately $45,000 annually and he would earn approximately $15,000 per year. The capacity of the sponsor to meet the proposed salary of the nominee is in doubt given this material. The self- generated Payroll Activity Summary for “BKs Franchising Australia” for the period 1 July 2017 to 30 June 2018 states that earnings were in the amount of $113,755.94 however the recipient of these earnings is not identified. These documents cannot be verified as they are not copies of versions that bear the mark of the ATO to establish that they have been submitted to that office.
Conclusion
The information provided to the Tribunal, both in written form and oral evidence at hearing does not demonstrate that the employer is a business that has the size or scope to support the position of a Finance Manager. When considering the inconsistent evidence presented to the Tribunal as to the identity of the employer of the nominee and the inconsistencies in the financial material, referred to above, together with the alleged structure of the workforce of the business, the Tribunal cannot be satisfied that the nominee will be performing the role of a Finance Manager, as described in ANZSCO, for the review applicant.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Danielle Galvin
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2019] AATA 1539

26 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction