Bo & Bo Gelato Pty Ltd (Migration)

Bo & Bo Gelato Pty Ltd (Migration) [2019] AATA 2626 (29 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bo & Bo Gelato Pty Ltd
CASE NUMBER:  1723241
HOME AFFAIRS REFERENCE(S):           BCC2016/4053343
MEMBER:K. Chapman
DATE:29 March 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 29 March 2019 at 4:55pm
CATCHWORDS
MIGRATION – nomination – refuse to approve the applicant’s nomination – lack of satisfaction that the position associated with the nominated occupation is genuine – nominee has demonstrated he has the skills necessary to perform the occupation – qualifications and experience of the nominee must be certified – nominee is critical to the commercial viability of the applicant’s business – fulfil the labour market testing condition – nominee holds relevant Bachelor and Masters level qualifications – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 140GBB -140GBC, 245AR(1), 359(2)
Migration Regulations 1994 (Cth), cl 457.223, rr 1.13A, 1.13B, 2.57, 2.57A, 2.72, 2.73, Public Interest Criterion (PIC) 4006A(1)(c)
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 13 September 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, Bo and Bo Gelato Pty Ltd (‘the nominator’), applied for approval on 1 December 2016. The applicant nominated Mr Matteo Zini (‘the nominee’) in the occupation of Corporate General Manager, which is coded as number 111211 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The nominee is a director and shareholder of the applicant company.
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 meet r.2.72(10)(f) due to a lack of satisfaction that the position associated with the nominated occupation of Corporate General Manager is genuine. In particular, the delegate expressed concern regarding the nominee being a director and shareholder of the applicant and him not performing the duties of the nominated occupation. On 27 September 2017, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.
On 8 January 2019, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. Following the grant of an extension of time to respond to the invitation, the Tribunal received material including, but not limited to, written submissions, lease documents, Business Activities Statements, an ASIC company extract, financial reports, employee list, written statement from the director, IELTS test results, Standard Business Sponsorship Approval notice, employment contract, job outlook overview, payscale average salary overview, VEVO screenshot, taxation documents and an annual report. All submitted material has been duly considered by the Tribunal.
The applicant, through its Corporate General Manager Mr Matteo Zini (‘the nominee’), appeared before the Tribunal on 22 March 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nominated person in the nomination application is Mr Matteo Zini (‘the nominee’). He is nominated pursuant to s.140GB of the Act on the basis that he will work in the occupation of Corporate General Manager. Accordingly, the Tribunal is satisfied that the applicable provision in this case is r.2.72 as in force immediately before 18 March 2018.
Key considerations in the present matter are whether the applicant is performing the occupation of Corporate General Manager and if the inapplicability conditions (also known as ‘caveats’ in Departmental policy) pertaining to this occupation are operative.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The applicant lodged their application for nomination identifying the occupation of Corporate General Manager (ANZSCO 111211) to be performed by Mr Matteo Zini, who is an applicant for a Subclass 457 visa. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form identifying Teneriffe, Queensland as the location where the occupation will be carried out, it was accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.
Further, the Tribunal is satisfied that the applicant is a standard business sponsor and the nomination identifies the six digit ANZSCO code for an occupation contained in a legislative instrument as an approved occupation for the purpose of the Subclass 457 visa.
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant submitted a copy of their Sponsorship Approval Notice from the Department indicating they are an approved standard business sponsor for the period 24 June 2016 to 24 June 2021.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
Having regard to the application for nomination and supporting documentary evidence, the Tribunal is satisfied that the applicant identified Mr Matteo Zini as the visa applicant who will work in the nominated occupation.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in instrument IMMI 17/057 in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
At the time of application for the current nomination, the nominee was the holder of a Subclass 457 visa on the basis of a previous nomination by the applicant. No family members were granted Subclass 457 visas as secondary applicants of the nominee in relation to that visa. Therefore, the requirements of r.2.72(6)(a) and r.2.72(7) are not relevant to the present matter.
The nominee is not required to demonstrate that he has the skills necessary to perform the occupation. Therefore, the requirements of r.2.72(6)(b) are not applicable. For completeness, the Tribunal notes that it is satisfied the nominee has demonstrated he has the skills necessary to perform the occupation given he has done so in the applicant company for some years, in addition to him holding relevant Bachelor and Masters level qualifications from Italy.
There is no evidence before the Tribunal to indicate that the nominee was granted the Subclass 457 visa after PIC 4006A(1)(c) has been waived. Therefore r.2.72(7A) is not relevant to the present matter.
There is no evidence before the Tribunal to suggest the nominee was granted the Subclass 457 visa on the basis of meeting cl.457.223(6). Therefore, the requirements of r.2.72(10)(g) are not relevant to the present matter. For completeness, the Tribunal notes the nominee submitted a copy of results for an IELTS test he undertook on 8 October 2016, in which he achieved an overall band score of 8.0 with component scores between 7.0 and 9.0, therefore achieving an English language test score specified in the relevant instrument.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds that the applicant has identified the occupation of Corporate General Manager (ANZSCO 111211) and Teneriffe, Queensland as the location where it will be carried out.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal is satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The applicant nominated the nominee in the occupation of Corporate General Manager (ANZSCO Code 111211). The aforementioned occupation has attached to it the following inapplicability conditions (or ‘caveats’) in accordance with instrument IMMI 17/060:
-Item 5: a) The position has a base salary of less than AUD$180,001; and
b) If the person is to be transferred to fill the position – the transfer is not an intra-corporate transfer to which an international trade obligation applies.
The applicant submitted documentary evidence to the Tribunal indicating that it currently operates four gelato stores in Brisbane under the trading name ‘La Macelleria’. The locations are Teneriffe, West End, Coorparoo and Bowen Hills. The applicant’s turnover in the 2017/18 Financial Year was $739,346, prior to the addition of the fourth store at Bowen Hills which recently opened. Mr Zini gave oral evidence to the Tribunal indicating the applicant’s projected turnover for the current financial year will be in excess of $1,000,000 with the fourth store now trading. He advised the Tribunal that the applicant now employs approximately thirty Australian citizen staff throughout the four gelato stores. Mr Zini outlined to the Tribunal that he plans to expand the applicant’s commercial operations and open gelato stores nationally.
Mr Zini informed the Tribunal that the applicant commenced trading in 2015 by opening its first gelato store in Teneriffe. At that time Mr Zini was one of three directors of the applicant company and also one of its three shareholders. Since then the other directors have resigned their positions but retained their shareholdings. Currently Mr Zini is the sole director of the applicant company and one of its three shareholders. ASIC records before the Tribunal confirm the accuracy of the aforementioned information.
Mr Zini explained that he is the Corporate General Manager of the applicant. He was previously granted a Subclass 457 visa on the basis of a prior nomination of him by the applicant. Mr Zini’s oral evidence regarding his duties may be summarised as follows. He sets the strategic direction of the applicant (including devising its expansion plans), liaises with developers to locate sites for new stores, oversees the profitability of the applicant, liaises with suppliers, consults with the accountant and bookkeeper regarding financial matters, liaises with the other shareholders, manages subordinate staff and plays a role in recruitment. Mr Zini explained that as the applicant operates four trading stores, he relies upon subordinate managers for the day to day supervision of the applicant’s staff as he cannot physically be present in each store at all times. Mr Zini also advised that the applicant has further expansion plans which will see the recruitment of more Australian citizen employees. On balance, the Tribunal accepts that Mr Zini, the nominee, performs tasks and duties that are commensurate with the occupation of Corporate General Manager as defined in ANZSCO.
The applicant also provided an employment contract to the Tribunal dated 12 February 2019 indicating the nominee’s annual salary to be $182,000. Having regard to the submitted financial information, which demonstrates the rapid growth of the applicant’s commercial activities, the Tribunal is satisfied that this salary is financially viable. Additionally, the Tribunal notes the nominee is not being transferred to fill the position of Corporate General Manager. Therefore, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition (or ‘caveat’).
For the above reasons, the Tribunal is satisfied that the nominated occupation is not affected by an inapplicability condition, the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA). It is not in dispute that no Australian citizens or permanent residents are performing equivalent work at the same location as the nominee.
The above requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028, which specifies the relevant amount as $250,000: r.2.72(10AB).
The nominee’s terms and conditions of employment are evidenced in his submitted employment agreement dated 12 February 2019. He receives a base annual salary of $182,000 plus superannuation payments. As previously outlined, the Tribunal is satisfied that the applicant has sufficient financial capacity to fund this salary. Further, having regard to market salaries for the occupation of Corporate General Manager, in conjunction with the financial records of the applicant, the Tribunal is satisfied that Mr Zini’s base annual salary is congruent with prevailing commercial conditions and that the terms and conditions of employment of the nominee are no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028, which specifies the relevant amount as $53,900.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

The requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028, which specifies the relevant amount as $250,000: r.2.72(10AB).
Following careful consideration of the evidence, the Tribunal is satisfied that the base rate of pay of the nominee is equal to that which would be provided to an Australian citizen or Australian permanent resident employee performing equivalent work at the same location. As the base rate of pay of the nominee is $182,000 per annum, it is greater than the current TSMIT. The Tribunal is therefore satisfied that r.2.72(10)(cc) is met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.
The applicant lawfully operates a business within Australia and the Tribunal is satisfied that it truthfully made the necessary certifications in the application for nomination.
For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
For reasons previously expressed, the Tribunal is satisfied that the nominee will perform the role of a Corporate General Manager as defined in ANZSCO and that he will not perform a lower level occupation. Further, the Tribunal is satisfied that the employment of the nominee is critical to the commercial viability of the applicant’s business.
The Tribunal notes the concerns of the delegate regarding the position associated with the nominated occupation being genuine, given that the nominee is a director and shareholder of the applicant company. However having regard to the particular circumstances before it, the Tribunal considers that the nomination has, and will continue to, provide a genuine economic benefit to Australia in the retail sector and create employment for Australian citizens. The rapid growth of the applicant’s commercial activities, which has resulted in the employment of approximately thirty Australian citizens across four gelato stores, combined with feasible plans for expansion, satisfy the Tribunal that the nomination is not made primarily to create a migration outcome for the nominee. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Corporate General Manager (ANZSCO 111211) is genuine.
Therefore, the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The applicant submitted a copy of the employment contract dated 12 February 2019 with respect to the nominee and the Tribunal is satisfied that he is employed pursuant to it.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
The applicant is not a party to a work agreement, and for this reason the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. In this matter, the nominated occupation is Corporate General Manager (ANZSCO 111211). This occupation is classified as Skill Level 1 in ANZSCO, with such occupations being specified for the purposes of the occupational exemptions in s.140GBC(4)(a): IMMI 13/137.
The relevant occupation description in ANZSCO provides that generally the minimum required qualification for the position is a Bachelor degree. The Tribunal is satisfied that the nominee holds relevant Bachelor and Masters level qualifications from Italy, in addition to him having performed the role of Corporate General Manager for some years. Accordingly, the skill and occupational exemption in s.140GBC(2) is satisfied.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Accordingly, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
K. Chapman
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 2626

29 March 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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