Bondi Eatery Co Pty Ltd (Migration)

Bondi Eatery Co Pty Ltd (Migration) [2022] AATA 2590 (15 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bondi Eatery Co Pty Ltd
CASE NUMBER:  1824052
HOME AFFAIRS REFERENCE(S):          BCC2017/4616121
MEMBER:Glenn O’Brien
DATE:15 June 2022
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 15 June 2022 at 1:45pm
CATCHWORDS
MIGRATION – nomination of a position – occupation of Café/Restaurant Manager – limited-service restaurant – tasks of the position correspond to nominated occupation – inapplicability provision – catering mainly for dine-in customers – terms and conditions of employment no less favourable – labour market testing – genuine position – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140, 245
Migration Regulations 1994, Schedule 2, cl 457.223; rr 1.13, 2.57, 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 Home Affairs on 1 August 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 5 December 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(aa) because the applicant provided no evidence to establish the proposed nominee was not working in a limited service restaurant.
The hearing was originally scheduled on 1 July 2021 and due to the unavailability of the member was postponed to 5 July 2021. On 5 July 2021 Ms Fatima Vardar appeared to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ismet Vardar.
On 6 July 2021 the applicant provided post hearing submissions and documents which have been carefully considered by the Tribunal during the application for review.
The applicant was represented in relation to the review.
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 reg 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.
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 reg 2.73.
The applicant lodged their application for nomination identifying the occupation of
Café/Restaurant Manager (ANZSCO 141111) to be performed by Mr Sanjan Maharjan Dangol, 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 a location at Bondi, New South Wales where the occupation will be carried out, 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 6-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 reg 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’s last standard business sponsorship was approved on 10 May 2018 for the period through to 10 May 2023.
For these reasons the requirements of reg 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 Sanjan Maharjan Dangol as the visa applicant who will work in the nominated occupation.
For these reasons the requirements of reg 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: reg 2.72(6)(a) and reg 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: reg 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: reg 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 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: reg 2.72(10)(g).
The nominee is not required to demonstrate that he has the skills necessary to perform the
occupation. Therefore, the requirements of reg 2.72(6)(b) are not applicable.
For completeness, the Tribunal notes that it is satisfied the nominee has demonstrated he has the requisite skills. The nominee holds a Diploma in Hospitality and an Advanced Diploma in Accounting.
There is no evidence before the Tribunal to indicate that the nominee was granted the Subclass 457 visa after public interest criterion 4006A(1)(c) was waived. Therefore reg 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 reg 2.72(10)(g) are not relevant to the present matter.
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;
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds that the applicant has identified the occupation of Café/Restaurant Manager (ANZSCO 141111) and a location at Bondi, New South Wales where it will be carried out.
For these reasons the requirements of reg 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 reg 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 regs 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 reg 2.72(9) are met.
Specified occupation
Regulation 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 18/004 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: reg 2.72(10)(b).
The nominated occupation of Cafe/Restaurant Manager (ANZSCO 141111) does correspond to an occupation in instrument IMMI 18/004. The instrument does not require that the nomination be supported in writing by a specified organisation.
The delegate refused the nomination on the basis of the inapplicability provision as the occupation is not an approved occupation where the nomination is in a limited service restaurant.
The applicant provided the Tribunal a range of documents in relation to the operation of the business. While the applicant business adapted to the circumstances presented by COVID-19 and focussed its business on takeaway during State imposed restrictions Ms Vardar told the Tribunal that ordinarily 90% of the applicant business is dine in. The facility has an outside seating capacity of some 80 people and the café has a 10 person seating capacity and employs seven staff. While there is a common kitchen there are two outlets – one being predominantly dining in while the other is more casual.
The business operates seven days a week from 7.00am to 10.00pm. While Ms Vardar has a similar role in the business, given its operating hours, the duties are split between Ms Vardar and the nominee.
On the basis of the evidence provided to the Tribunal including the oral evidence of Ms Vardar, the Tribunal is satisfied the applicant business, while having a casual dining element, also caters for dine-in customers and is not when considered holistically a limited service restaurant.
Notably, prior to the change in ownership in 2017, the nominee worked at the same location and in the same position for which nomination approval was granted.
Accordingly, the requirements of reg 2.72(10)(aa) are met.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). ‘Earnings’ is defined in reg 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 the relevant instrument: reg 2.72(10AA).
The Tribunal notes that the submitted evidence points to the applicant company currently not employing an Australian citizen or Australian permanent resident in an equivalent role to the nominee. The nominee’s terms and conditions of employment are evidenced in her most recently submitted employment contract, which indicates he receives an annual salary of $55,000 plus superannuation.
Following careful consideration of the evidence, the Tribunal finds 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 these reasons the requirements of reg 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.
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 $55,000 per annum, it is greater than the current TSMIT.
The Tribunal is therefore satisfied that reg 2.72(10)(cc) is met.
Certification under reg 2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument
·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 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 instrument
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO 141111.
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 reg 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.
The tasks of the nominated position are set out in ANZSCO Unit Group 1411 as follows:
UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS

CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oplanning menus in consultation with Chefs
oplanning and organising special functions
oarranging the purchasing and pricing of goods according to budget
omaintaining records of stock levels and financial transactions
oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
oconferring with customers to assess their satisfaction with meals and service
oselecting, training and supervising waiting and kitchen staff
omay take reservations, greet guests and assist in taking orders

Occupation:
141111 Cafe or Restaurant Manager

141111 CAFE OR RESTAURANT MANAGER

Alternative Titles:
Food and Beverage Manager
Restaurateur

Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.
Skill Level: 2
Specialisations:
Bistro Manager
Canteen Manager
Caterer
Internet Cafe Manager
Mess Supervisor
Steward (Navy)
The tasks undertaken by the nominee are summarised by the applicant as follows:
In carefully considering the evidence of Ms Vardar, the Tribunal is satisfied the tasks of the nominated position correspond to the tasks set out in ANZSCO 141111 Café / Restaurant Manager which is a Skill Level 2 position.
On balance, the Tribunal is satisfied that the position associated with the nominated occupation of Café/Restaurant Manager (ANZSCO 141111) is genuine. The Tribunal so finds.
Therefore, the requirements of reg 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 most recent employment contract with respect to the nominee and the Tribunal is satisfied that he continues to be employed pursuant to it.
For these reasons the requirements of reg 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): reg 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 the applicant, these must have been met.
The applicant is not a party to a work agreement, and for this reason the requirements of regs 2.72(11) and (12) are not applicable.
Labour market testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s 140GBB–140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
Following careful consideration of the evidence, the Tribunal is satisfied that the applicant conducted appropriate labour market testing by way of advertising and was unable to secure the services of a suitably qualified and experienced Café/Restaurant Manager through that process. Notably the nominee has worked in the same business including with a previous employer since 2013.
The Tribunal is further satisfied that the nominee was employed on the strength of his qualifications and experience in the industry since at least 2013, and that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position. Additionally, there is no evidence before the Tribunal suggestive of relevant redundancies or retrenchments having been made.
On balance, the Tribunal is satisfied that the applicant met the requirement to conduct labour market testing. Therefore, the Tribunal finds that the labour market testing requirements in s 140GBA are satisfied.
Accordingly, the applicant meets all the applicable criteria for the nomination to be approved.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Glenn O’Brien
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.

[2022] AATA 2590

15 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction