CANBERRA FRESH GROUP PTY LTD ATF CANBERRA FRESH GROUP TRUST (Migration)

CANBERRA FRESH GROUP PTY LTD ATF CANBERRA FRESH GROUP TRUST (Migration) [2018] AATA 1208 (17 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CANBERRA FRESH GROUP PTY LTD ATF CANBERRA FRESH GROUP TRUST
CASE NUMBER:  1612653
DIBP REFERENCE(S):  BCC2015/3931943
MEMBER:John Cipolla
DATE:17 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 17 April 2018 at 3:47pm

CATCHWORDS
Migration – Whether the nominated occupation is genuine – Customer Service manager –Role does not meet ANZCO requirements – Scale and activities of the business not sufficient for a customer service manager
LEGISLATION
Migration Act 1958 ss 140GB, 140GBA
Migration Regulations 1994 rr 2.72, 2.73
CASES
Cargo First Pty Ltd v Minister for Immigration and Border Protection [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 on 22 July 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 18 December 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72(10)(f) because the delegate was not satisfied that there was a genuine need for the position of Customer Service Manager in the business.
The applicant appeared before the Tribunal on 20 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Dinesh Sadyal, who is the applicant's nominee for the purposes of this application.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The intention of this provision is to ensure that positions nominated are in skilled occupations and are genuinely needed by the nominating employer.
Departmental Findings
The Departmental delegate found that the role of the Customer Service Manager involved more than just providing customer service to clients of the business. The delegate having regard to the ANZSCO occupational dictionary noted that the role was of a highly specialised nature and it involved planning, reviewing and developing policies, programs and procedures to improve customer relations, goods and services and after sales service as well as leading and motivating customer service officers and assisting with the recruitment process. The delegate found that some of the duties to be performed by the nominee were consistent with the role of Customer Service Manager but that the proposed task that the nominee would undertake in the business did not align substantially with the tasks of the nominated occupation.
Review Hearing
At the review hearing on 20 March 2018 the Tribunal took evidence from a Director of the business Mrs Toni Irvine. The witness advised that the Canberra Fresh Group was a retail wholesale fruit and vegetable market open 5 days a week. The Tribunal asked the witness about the employment composition of the business. She advised that her son Todd was the Store Manager and that Dinesh Sadyal (the nominee) was currently working as a Customer Service Manager in the business. She advised that there were a number of full-time and casual staff in the business. She advised that the staff were involved in stocking shelves, putting together orders displaying goods and working cash registers. The witness advised that her son Todd had worked in the business for a period of 10 years. She advised that he was involved in ordering of stock, reallocation of stock, sourcing products, organising displays, quality control, supervising the day-to-day running of the business and managing staff numbers along with pricing and signage. The witness advised that the business operated out of 2 locations in Canberra and that the wholesale arm of the business provided goods to restaurants and cafes in the Canberra area. The witness advised the focus of the business was on retail.
The witness advised that with regard to the product line 80% of the products sold were fruit and vegetables, the business did not sell meat, the two businesses contained dairy cabinets selling milk, cheeses and dips.
The Tribunal asked the witness about the key aspects of the role of Customer Service Manager in the business. The witness advised that the businesses served 5000 customers each week and that the position operated over the top of all customers and over the top of staff. She advised that it was an office-based position with 80% of the Customer Service Manager’s time based in the office and about 20% on the floor. She advised that the role involved setting tills, supervising staff, tallying and balancing tills, customer service, and determining how to improve customer service. The witness stated that as the business competed against a number of other fruit and vegetable retail outlets, the business’s objective was to make customer service something that set them apart from their competitors. The witness stated that the Customer Service Manager oversaw both store locations. The Tribunal asked the witness what the Customer Service Manager did with regards to ensuring the best customer service. The witness advised that this involved ensuring staff had good product knowledge, the implementation of a loyalty program since 2015 where customers were given cards and accrued loyalty points for dollars spent, the preparation of a weekly email newsletter and oversight of specials across the business. The Tribunal asked the witness whether the position involved dealing with complaints and how many complaints the business generated. The witness advised that the business dealt with approximately 4 to 5 complaints a week, predominantly about quality, and the complaints mainly came from within the retail sector of the business. With regard to the wholesale component of the business, the Customer Service Manager was involved in putting orders together for wholesale customers and organising delivery of orders. The position also involved dealing with suppliers, dealing with quality issues, and balancing invoices to stock. The witness advised that Mr Sadyal had worked for the business for 10 years.
The Tribunal took evidence from Mr Dinesh Sadyal. Mr Sadyal advised that he was currently employed in the role of Customer Service Manager for the business. The Tribunal asked the witness about the organisational structure. He advised that the business had a store manager Mr Todd. The Tribunal asked the witness about Mr Todd’s role in the business.
The witness advised that Mr Todd was involved in the preparation of rosters, approving leave, the preparation of a regular newsletter for customers and oversight of the business. The Tribunal asked the witness what his role was as Customer Service Manager in the business. He advised that he looked after customers and provided customer assistance. He would check with customers about their satisfaction with products and respond to any complaints. He advised that he would put forms pertaining to the loyalty program offered by the business near the cash registers to encourage customers to sign up to the businesses loyalty program. The witness advised that as a result of the loyalty program 40 to 50 vouchers were issued to customers each week. The witness advised that one of his roles was to cross check what vouchers have been redeemed by customers.
The Tribunal asked the witness about his role with regard to staff training and he advised that he provided training on how to use the tills, about product placement and about greeting customers. The Tribunal asked the witness whether he spent most of his time in an office or on the floor. The witness advised he spent a combination of his time both in the office and on the floor and that he oversaw the 2 retail businesses at 2 separate locations. He advised that he was involved in checking products, checking vouchers, checking stock, checking specials and interviewing new workers for the business. The Tribunal asked the witness whether there were many complaints and he advised that there were a few complaints each week predominantly pertaining to the demeanour of staff at the cash registers, and the witness stated that he would advise staff to smile and be more courteous to customers.
FINDINGS AND REASONS
In determining whether the position is genuine under r. 2.72(10)(f), or as expressed by the court in Cargo First Pty Ltd v MIBP whether the position really is what it purports to be, the Tribunal is required to undertake a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the sponsor. The necessary qualitative analysis, as indicated by the Court, requires more than just examining whether the duties and tasks the employee undertakes (or will undertake) include the majority of those referred to in the ANZSCO in respect of the nominated occupation. (see (see [2015] FCCA 2091 at [30] per Judge Smith. The decision at first instance was upheld on appeal in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30, and the construction of r. 2.72(10)(f) at first instance was endorsed at [36])
The Tribunal received a pre-hearing submission from the applicant’s representative which it has duly considered. The submission outlines the tasks of the nominated position of Customer Service Manager claiming that the tasks performed on a daily basis were consistent with the tasks set out in ANZSCO. The submission notes that the tasks of the position included developing and reviewing policies and procedures concerning customer relations and goods and services provided, managing customer complaints, issuing refunds, maintaining records of customer issues, liaising with other organisational units and service agents and providing direction training and feedback to team members and assisting with recruitment.
The Tribunal has had regard to the ANZSCO occupational dictionary which states as follows with regard to the position of Customer Service Manager:
Plans, administers and reviews customer services and after-sales services and maintains sound customer relations.

Skill Level:

The entry requirement for this occupation is an AQF Diploma or higher qualification or at least 3 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.

Tasks Include:
manages, motivates and develops staff providing customer services
develops and reviews policies, programs and procedures concerning customer relations and goods and services provided
plans and implements after-sales services, to maintain operating performance of goods purchased and to modify and improve services rendered
liaises with other organisational units, service agents and customers to identify and respond to customer expectations
reviews compliance with established product and service quality standards, and reports on faulty products and deficient services
distributes product and service literature to service agents and customers
The Tribunal has had regard to the position as described in the ANZSCO. The Tribunal has been guided by the skill level and tasks detailed in the ANZSCO guide for position code 149212. The Tribunal accepts that a Customer Service Manager position would involve the type of duties outlined, which focus on planning, administering and reviewing customer services and after-sales services, and maintaining sound customer relations.
The business operates 2 retail outlets, being fruit and vegetable stores with a focus on retail and some wholesale functions. The businesses sell milk, cheese and dips.
The Tribunal finds that the role currently being held by the nominee Mr Sadyal does not encompass the range of tasks that one would expect a Customer Service Manager to be involved with. The nominee’s evidence at review hearing was that he deals with customer complaints that amount to just a few each week, Mrs Irvine in her evidence advised about 4-5 each week, predominantly about quality issues or poor service at the cash registers. Mr Sadyal also conducts reconciliations pertaining to a loyalty programme run by the business (where customers are given vouchers to reward spending) so he can check what vouchers have been redeemed. He is also involved in giving some direction to staff about engaging with customers. The Tribunal is also not persuaded that the business is of a scale to require a dedicated Customer Service Manager. Although the businesses have a large volume of sales, they consist of two fruit and vegetable stores, predominantly focussed on retail and the Director of the business and the nominee Mr Sadyal gave evidence that the staff working in the store have to multi task and people’s duties overlap. This indicates to the Tribunal that consistent with the objectives of a retail outlet, all floor staff who serve customers would have responsibility for ensuring customer service is optimum.
The applicant also gave evidence that there are not many customer complaints (as noted around 3-4 per week). Therefore, although the Tribunal accepts that the position involves some after sales contact, the Tribunal is not persuaded that a main task of the position is to plan and implement after-sales services to follow up customer satisfaction.
In summary, the Tribunal considers that the evidence indicates that the actual duties of the position associated with the nomination are to assist the Store Manager Mr Todd Irvine with the recruitment and training of staff who work on the shop floor, to reconcile the cash registers, daily checking of stock to ensure it is correctly presented and stored at the right temperature, to put together wholesale orders, and to give advice to the Store Manager about stock. The Tribunal is of the view that the evidence about the duties of the position associated with the nominated occupation in the pre-hearing submission largely replicates the duties as outlined in ANZSCO. The Tribunal has given more weight to the Director Mrs Irvine’s oral evidence and that of the nominee Mr Sadyal with regard to what the duties of the position actually consist of. The Tribunal considers that this evidence reflects that the nominee’s actual role is in providing a range of services in a retail operation and in supervising other staff providing similar services.
The Tribunal accepts that in performing these duties in a retail environment, the position involves following the principle of providing and maintaining good customer service, and that the role also involves recruiting, guiding and training other staff in relation to providing good customer service. However, the Tribunal considers these aspects of the position derive directly from the essential nature of retail management, and would be a standard feature of any such retail operation.
The Tribunal does not accept that the duties of the position would include the range of duties and responsibilities of, and at the skill level of, a Customer Service Manager. The Tribunal notes that the Store Manager Mr Todd Irvine is involved in the overall management of the business. The Tribunal is not satisfied that the scale and activities of the business are such that there is, in addition to Mr Irvine’s position, a need for a designated Customer Service Manager performing the range of duties as described in ANZSCO and at the skill level indicated as necessary to the operations of the business. The Tribunal considers that the customer service aspects of the position’s duties flow directly from the provision of goods and services, and from supervising other staff and the general operations of the business on a day-to-day basis. The Tribunal considers that these aspects are put into practice on a basic level. The Tribunal is not satisfied that the duties in the position focus on the development and review of specific policies and procedures relating to customer relations, and the planning and implementing of after sales services in the context of customer relations, at the range and skill level that is indicated by the description of the occupation in ANZSCO.
The Tribunal is not satisfied that the position of Customer Service Manager associated with the nominated occupation is genuine. For these reasons the requirements of r.2.72(10)(f) are not met and therefore the requirements of r.2.72(10) are not satisfied.
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.
For these reasons the requirements of r.2.72(10)(f) are not met
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant meets the all 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.
John Cipolla
Senior Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and 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 1208

17 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness