BM SYDNEY BUILDING MATERIALS PTY LTD (Migration)

BM SYDNEY BUILDING MATERIALS PTY LTD (Migration) [2018] AATA 502 (7 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  BM SYDNEY BUILDING MATERIALS PTY LTD
CASE NUMBER:  1613574
DIBP REFERENCE(S):  BCC2015/3815031
MEMBER:Denise Connolly
DATE:7 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 07 March 2018 at 3:04pm

CATCHWORDS
Migration – Sponsor – Nomination of an occupation for a Subclass 457 visa – Nominee currently working with the Sponsor – in the nominated position – Sales and Marketing Manager – Genuine position – Lower skill level – Mix of the duties of a Retail Buyer and a Retail Manager
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 359
Migration Regulations 1994, rr 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 August 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 11 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 applicant, based in Cabramatta NSW, operates a building materials supply business. It has submitted a company tax return for the 2016 financial year indicating sales of over $10m. It has nominated the occupation Sales and Marketing Manager (ANZSCO 131112).
The delegate decided not to approve the nomination on the basis that the applicant did not meet r.2.72(10)(f) because the delegate was not satisfied the business was operating within a competitive, complex business environment with a significant number of staff, resources, services/product lines and client commitments. She accepted that some of the duties to be performed in the position are consistent with the nominated occupation but was not satisfied the proposed tasks would align substantially with the tasks of a Sales and Marketing Manager. She was not satisfied the position associated with the nominated occupation to be genuine.
Mr Ming Lee, Managing Director of the business, appeared before the Tribunal on behalf of the applicant, on 6 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jingyou Zhang, the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
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).
The applicant operates a building materials supply business. It has nominated the occupation Sales and Marketing Manager to be located in Cabramatta, NSW. The application included a position description indicating the position would perform the following responsibilities and tasks, which are essentially the same as those in the occupation description in ANZSCO:
a.plan and execute sales strategies, and coordinate sales and marketing activities to achieve increased sales and brand awareness
b.set sales targets in order to attract customers to increase sales and maintain customer loyalty
c.develop and implement strategies to promote products to potential clients and maximise market exposure
d.develop and implement strategies to improve and increase brand awareness of products among customers and the wider public
e.develop and implement strategies to develop, improve and maintain the image and reputation of our company among customers, investors, and the wider public.
The applicant has stated that there is an employment contract with the nominee in which it is stated that the nominee will be paid $60,000 for working a 38 hour week. This base salary was also given in the nomination application.
Having considered the ANZSCO description for the nominated occupation, the delegate formed the view a Sales and Marketing Manager is a high level, specialised role that makes strategic contributions including planning, organising, directing, controlling and coordinating the sales and market activities within an organisation. The delegate formed the view that the role is typically associated with organisations operating in a competitive and complex business environment with a significant number of staff, resources, services/product lines and client commitments. While acknowledging that some of the duties to be performed by the nominee are consistent with the role of the occupation, when assessing the claimed duties of the nominee in the context of all the information provided, the delegate was not satisfied that the proposed tasks that the nominee would undertake align substantially with the tasks of the nominated occupation. She also noted the applicant already has two Sales and Marketing Managers and was not satisfied the applicant demonstrated growth of the business as claimed such that it would require another Sales and Marketing Manager. She was not satisfied that the nominee would be likely to be regularly performing the full breadth of duties as defined in ANZSCO for the nominated occupation.
Prior to the hearing, in response to a s.359(2) invitation, the applicant provided an organisational chart indicating the business employs 16 people including a Sales and Marketing Manager, 15 full-time employees and one part-time employee. In written submissions the applicant has submitted that the business needs the position to formulate and implement sales and marketing policies and plans, understand local builders’ needs and requirements, consult with local and overseas suppliers, set up an annual sales target and marketing strategy, advertising, and method of promoting to increase sales target. It also needs the position to develop new products, marketing and advertising campaigns, research the market, and then market the products, and implement sales methods such as advertising to target potential and existing customers. Other duties will include overseeing the customer base by understanding customers’ business activities, coordinating the work of salespersons, implementing sales methods and arrangements by setting credit terms, as most of the customers are on a credit terms payment basis. Accordingly it is asserted the business needs the position to understand customers’ financial backgrounds and purchasing ability to make a decision about the credit terms. It will manage the internal customer service team and sales team. The nominee needs to be able to speak fluent Chinese and English. It has also submitted that the business is currently paying the nominee a base salary of $54,000 per annum plus a sales bonus, and in 2017 he was paid a bonus of $14,000.
The applicant has submitted to the Tribunal that the applicant’s turnover is over $10m. The applicant sent a list of customers who are debtors. It has also provided a draft company tax return for 2016 indicating sales of over $10m, and salary/wage expenses of $666,011. Draft BASs were also provided for the period 1 April 2016 to 30 September 2017.
At the hearing the Tribunal explained the requirements of the relevant law and the nature and needs of the business. The following is a summary of the evidence provided at the hearing.
The applicant described the business as a building materials supplier, selling a variety of products, both locally sourced and imported from overseas. The business is constantly changing because it looks for better quality materials and also replaces products that are no longer in supply. The business needs the position to keep looking for new products. Mr Lee is responsible for the overall management of the business, looking after the company and ensuring its turnover. It is located in a 1800 m² building in Cabramatta. The business has customers who pick up from the shop and it also delivers goods from phone orders. It has another warehouse in Kemps Creek however the position will be located in Cabramatta. The business currently employs about 16 workers. Mr Lee’s son, James, is the sales manager. He goes out to the market, meeting with customers, to establish what the business needs to sell. Mr Lee has another son, Bob, who is also responsible for sales and gives technical advice to customers. He has some sales workers who work both in the shop and go out to meet customers. There are also staff who are responsible for delivery. The sales staff are generally supervised by James and sometimes by the nominee. There are regular sales meetings where Mr Lee meets with relevant staff to discuss the sales trends and targets.
The Tribunal asked the applicant if the nominee is currently working in the position required. He confirmed that Mr Zhang has been working in the position for about two years. The Tribunal asked about the business’ needs for the position. He indicated that because the business’ stock is constantly changing, he needs the position to source new products. The position researches and sources new materials both locally and overseas, mainly from China. The position makes connections with suppliers overseas. The nominee is crucial in this role because he speaks Chinese (Mandarin). He is also able to research new products online and ensure that he gets the best products. This is intrinsic for the survival of the company. When he sources and purchases a new product he then promotes it to the customers. When asked how he does this the applicant indicated he speaks directly with customers. He identifies the customers from the business’ customer list. The Tribunal asked if the position will be required to undertake any other duties. He indicated that this role is not a one-off job. The position needs to continuously research and find quality products. The Tribunal asked the applicant about any other tasks undertaken by the position. He indicated that the position negotiates the purchase of products from overseas, generally by email. It spends time looking for new products. The position then talks to salespeople about price and how they will sell the product. For example recently the market has been short of paper tape because the company in Shanghai which provided this product stopped producing it. The position had to find a new product supplier.
The Tribunal asked the applicant how the position communicates information to management regarding sales targets and strategies. The applicant indicated that the information is generally provided orally at the regular sales meetings.
The Tribunal raised with the applicant the concern that the written material indicated that the position would plan and execute sales strategies and coordinate sales and marketing activities to achieve increased sales and brand awareness. It asked the applicant to describe the relevant activities undertaken by the position. The applicant was not certain that the position undertakes these duties. He indicated that the position focuses on buying and selling good quality products to achieve the sales targets.
The Tribunal asked the applicant if the position has regular customer contact. He confirmed that this was the case. The nominee serves customers in the morning in the shop and then in the afternoon he goes out to meet customers in their own environment. The Tribunal asked the applicant if the position undertakes any supervision of sales staff. He confirmed that the position supervises the sales staff in the morning.
The Tribunal raised its concern that the position may not be that of a Sales and Marketing Manager but rather another occupation at a different skill level, such as a Retail Manager. It asked for the applicant’s comments. The applicant indicated that there are no clear sections in his business. Everybody just does what needs to be done. There is no specific thing that the nominee is required to do. His duties are quite broad. In the morning he serves customers and answers questions about products. The business needs him to have this customer contact because of his language skills. The Tribunal explained that while it accepts the business needs the position to perform the duties as described at the hearing it is concerned that they are not the duties of a Sales and Marketing Manager. It also raised its concern that the applicant’s oral evidence is different to the written submissions provided which indicate that the nominee is undertaking the duties of a Sales and Marketing Manager as described in ANZSCO. The applicant indicated it is very hard for him to go into the details regarding the position’s requirements. However the nominee has improved the company’s turnover and the company needs him for it to be successful. It relies on his language skills because more than half of the customers are Chinese. The aim of the company is to promote its products and sell products sourced locally and overseas. This will result in an increased turnover. The nominee may not perform the duties of a Sales and Marketing Manager because the company is not very large. The business has to take advantage of what it has. It does not have clear sections which perform specific duties. The nominee is used for a range of tasks because of his language skills. When the business requires an explanation to be provided to a Chinese customer, it relies on the nominee to do this.
The Tribunal asked the applicant about the nominee’s base salary. While he was not certain of the base salary as it is set out in the contract he confirmed that the information provided in the written submission to the Tribunal is accurate. The Tribunal notes that information indicates the nominee is receiving a base salary of $54,000 and then paid a sales bonus. The Tribunal also noted that the position as described by the applicant appears to be based in a frontline retail setting and predominantly involves direct client transactional interaction on a regular basis. The Tribunal raised its concern that the position may be affected by the caveat described in the relevant instrument which states that certain occupations, such as those in a frontline retail setting, are not applicable. The applicant indicated that the company needs the nominee to deal directly with customers in a frontline retail setting as he is able to solve problems using his language and knowledge. The Tribunal explained that this may indicate that the position is not that of a Sales and Marketing Manager.
The Tribunal asked the applicant if there was any other information he wished to give regarding the Tribunal’s concerns that the position may not be that of a Sales and Marketing Manager. He indicated that the company’s business model is based on the different areas being interconnected. It would be hard for the business to set clear distinctions regarding the position’s duties. If the nominee is not working for the business it would be very difficult for the company to succeed because of the particular business environment and the nominee’s skills.
The Tribunal also spoke with the nominee who indicated he was concerned that the migration agent had not given correct information in the nomination application. He indicated that he had even spelt his name incorrectly.
Assessment of the evidence
The Tribunal has taken into account the ANZSCO description of the nominated occupation. While it is not bound by this description it finds it useful in assessing whether the duties of the position reflect those of the occupation Sales and Marketing Manager, both in terms of its duties and skill level. The ANZSCO description states as follows:
UNIT GROUP 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS

ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.
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 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:
odirecting the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty
odirecting the development and implementation of strategies to promote an organisation's goods and services to as many people as possible
odirecting the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'
odirecting the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

Occupations:
131112 Sales and Marketing Manager
131113 Advertising Manager
131114 Public Relations Manager

131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1
Specialisations:
Business Development Manager
Market Research Manager
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Tribunal has carefully considered all of the evidence before it but, for the following reasons, it is not satisfied that the position required by the business is in the nominated occupation of Sales and Marketing Manager as described in ANZSCO, as the applicant has claimed.
The Tribunal notes that the written submissions regarding the duties of the position are somewhat different to those provided in the applicant’s oral evidence at the hearing. In the context of the nature and size of this business the Tribunal is satisfied that the applicant accurately described at the hearing the needs of the business and the position it requires. While the written submissions regarding the position’s duties reflect the tasks and skill level as described in ANZSCO, the Tribunal is satisfied that the applicant had a fair opportunity to describe all of the duties and tasks for the position as they are required by the business, and his oral evidence gave a different description of the role. On the basis of all of the evidence before it the Tribunal is satisfied that the business requires the nominee to research, source and secure the purchase of building products, both from local and overseas suppliers. The business requires the nominee to have Chinese language skills because many of its products are purchased from China and many of its customers are Chinese speaking. The Tribunal is satisfied the business requires the position to be involved in frontline retail sales, both within the business’ premises at Cabramatta and also out in the market when the position will meet with customers. The Tribunal is satisfied that the business requires the nominee to be involved in direct customer transactional interaction on a regular basis. The Tribunal is also satisfied the business requires the position to supervise sales staff. It is also satisfied that the business requires the position to promote particular products by speaking directly with customers. The Tribunal also accepts that the position talks to other sales staff about price and how they will sell the product. It accepts that the position gives management information about sales and strategies at regular sales meetings.

Having considered all of the evidence before it, the Tribunal is not satisfied the position plans and executes any other sales strategies and marketing activities to increase sales, apart from direct contact with customers. While it is satisfied that the position may set sales targets in order to attract customers to increase sales and maintain customer loyalty it does this by having direct customer contact. Apart from by direct customer contact, the Tribunal is not satisfied the position develops and implements strategies to promote products to potential clients. It is not satisfied it develops and implements strategies to improve and increase brand awareness of products amongst the wider public. Nor is it satisfied that it develops and implements strategies to develop, improve and maintain the image and reputation of the business amongst the wider public.
Having considered all of the duties of the position required by the business, the Tribunal is of the view the business needs the position to undertake a mix of the duties of a Retail Buyer and a Retail Manager, both occupations being at a lower skill level than a Sales and Marketing Manager which is a Skill Level 1 occupation. While it is satisfied that the business needs the position to perform the duties currently undertaken by the nominee, it is not satisfied the duties and tasks are those of a Sales and Marketing Manager, an occupation which, in the Tribunal’s view does not involve direct customer transactional interaction on a regular basis. The business, in this case, relies on the nominee’s knowledge, experience and language skills to source and purchase products, and to perform direct sales duties. The Tribunal accepts these are significant needs for the position. It is of the view these duties are not at the same level of the tasks of a Sales and Marketing Manager which plans, organises, directs, controls and coordinates sales and marketing activities. While the Tribunal accepts that the position may perform a subset of some of the tasks set out in ANZSCO for the occupation Sales and Marketing Manager, such as promoting goods to customers, it notes they are undertaken in the context of direct customer interaction, not as a Manager organising, directing, controlling and coordinating sales and marketing activities. The Tribunal considers that the position will spend the bulk of its time performing duties that are better described as a mix of Retail Buyer/Retail Manager, neither of which is a Skill Level 1 occupation. Having considered the ANZSCO description of the occupation, the Tribunal is not satisfied the duties and skill level required by the business of the position are those of a Sales and Marketing Manager, and therefore does not meet the requirements for the purposes of a Subclass 457 nomination. The Tribunal is not satisfied in this case that the position will involve undertaking the bulk of the tasks at the level of complexity as described in ANZSCO for the occupation Sales and Marketing Manager.
Given the above, the Tribunal is not satisfied that the position can be accurately described as Sales and Marketing Manager. For these reasons, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine
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.
Denise Connolly
Member

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

[2018] AATA 502

7 March 2018

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness