CLEANING FOR A REASON PTY LTD (Migration)

CLEANING FOR A REASON PTY LTD (Migration) [2017] AATA 549 (18 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Cleaning for a Reason Pty Ltd
CASE NUMBER:  1616519
DIBP REFERENCE(S):  BCC2016/2225258
MEMBER:Katie Malyon
DATE:18 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 18 April 2017 at 2:16 pm
CATCHWORDS
Migration – Nomination – Genuine position – Salon Manager – Multiple nomination applications –Size of Salon and nature of operations – Tasks consistent with ANZSCO description – Genuine need for position

LEGISLATION
Migration Act 1958, s 140GB, s.245AR(1)
Migration Regulations 1994, r 2.72, r.1.13A and r.1.13B of

, r.2.57(3A), r.2.57A

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 16 September 2016 to refuse to approve the nomination application made by approved sponsor Cleaning for a Reason Pty Ltd (the Company) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval of the nomination on 30 June 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) inclusive prescribe the criteria that must be satisfied for the Minister to approve a nomination. These criteria are extracted in the Attachment to this decision. For nomination applications made from 23 November 2013, additional criteria in relation to labour market testing are specified in s.140GBA of the Act.
The delegate decided not to approve the nomination on the basis that the Company did not satisfy r.2.72(10)(f) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation of Hair or Beauty Salon Manager is genuine. The Company nominated the position of Salon Manager for nominee Ms Deepika Kansal at its salon known as Beyond Hair Salon (the Salon) located in Bomaderry. A copy of the delegate’s decision was provided to the Tribunal.
Mr Sujindran Sivalingam (known as Suji Siv), the Managing Director of the Company, appeared before the Tribunal on 3 March 2017 to give evidence and present arguments. The Tribunal also received evidence from nominee, Ms Deepika Kansal. The Company was represented in relation to the review by its newly appointed registered migration agent, who also attended the hearing. The Company’s representative provided extensive documentation to the Tribunal (at the Tribunal’s request) both before and after the hearing.
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 Company meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 of the Regulations and, for nomination applications made from 23 November 2013, s.140GBA of the Act are met: s.140GB(2) of the Act.
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 Tribunal has had regard to the material on the Department’s file and is satisfied that the Company has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination an applicant for a Subclass 457 visa as the person who will work in the occupation. The nomination was made using the approved form and accompanied by the correct fee. The Company’s nomination identifies the location, Bomaderry, where nominee Ms Kansal will carry out the occupation and it includes the name and/or 6 digit ANZSCO of the occupation, that is, Hair or Beauty Salon Manager ANZSCO 142114.
Given the above, the Tribunal finds that the requirements of r.2.72(3) of the Regulations 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 Company was approved as a standard business sponsor on 24 April 2015 for a period of 5 years to 24 April 2020. Accordingly, the Tribunal is satisfied that the Company is a standard business sponsor and, for this reason, the requirements of r.2.72(4) of the Regulations are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identifies in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
The Company has identified in the nomination Ms Deepika Kansal, who is an applicant for the visa, to work in the nominated occupation.
For these reasons the requirements of r.2.72(5) of the Regulations 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.
Since nominee Ms Kansal is not currently the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) of the Regulations are not applicable.
Information about the nominated occupation
In relation to the requirement in r.2.72(8A) of the Regulations, the Tribunal is satisfied that the Company has provided the required information, including the name of the occupation and the corresponding 6-digit ANZSCO code. The Company indicated the occupation is Hair or Beauty Salon Manager 142114 and the location at which the occupation is to be carried out, namely, Bomaderry NSW 2541.
For these reasons the requirements of r.2.72(8A) of the Regulations are met.
Certification relating to conduct under s.245AR(1) of the Act
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. This relates to the probation on a sponsor asking for receiving a benefit in return for the occurrence of a sponsorship-related event.
The Company has certified in its nomination application that it has not engaged in conduct that constitutes a contravention of s.245AR(1) of the Act. The Tribunal notes there is no information before it that would indicate this is not case.
For these reasons the requirements of r.2.72(8B) of the Regulations 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 r.1.13A and r.1.13B of the Regulations. Extracted in the Attachment to this decision are the provisions of r.1.13A of the Regulations. The adverse information must have occurred within the previous 3 years: r.1.13A(3) of the Regulations.
As noted above, the Company’s representative provided the Tribunal with extensive documentation both before and after the hearing. Documentation included Business Activity Statements (BAS) for FY2013/14, FY2014/15, FY2015/16 and that the period 1 July 2016 to 31 December 2016. Arising from the Tribunal’s examination of the BAS it became evident that the Company has been consistently tardy in ensuring lodgement of its BAS on time. This is despite using the services of a registered tax agent. By way of example, the BAS for the period 1 January 2016 to 31 March 2016 due to be lodged on or before 30 May 2016 was, based on documentation provided to the Tribunal, lodged by the Company’s tax agent using the Tax Agent Portal operated by the Australian Taxation Office (ATO) on 17 October 2016: that is, it was lodged nearly 6 months late. On the same day, the Company’s tax agent also lodged the BAS for the period 1 April 2016 to 30 June 2016 which was due to be lodged on or before 25 August 2016: that it is, it was lodged nearly 4 months late. None of the BAS provided to the Tribunal indicates that the statements were lodged on time.
During the hearing, the Tribunal discussed with Mr Sivalingam its serious concerns that the Company’s persistent delay in lodgement of BAS – and, therefore, payment of any monies owing to the ATO - demonstrated a pattern of behaviour that, in the opinion of the Tribunal, constitutes adverse information about the Company. The Tribunal explained that in its opinion such conduct is relevant to the Company’s suitability as an approved sponsor as contemplated by r.1.13A of the Regulations. Mr Sivalingam told the Tribunal that the Company has received a fine from the ATO for $550 for late lodgement of its BAS. He added that his Accountant is now back, aware of all of this and that things are now under control. In this regard, the Tribunal notes that the most recent BAS (that is, the BAS for the period 1 October 2016 to 31 December 2016) which was due to be lodged on or before 28 February 2017 was lodged on 6 March 2017: that is, it was one week late.
On the basis of evidence provided, the Tribunal finds that the Company’s persistent pattern of delayed lodgement of BAS is adverse information that is relevant to the Company’s suitability as an approved sponsor. However, having raised its concerns and the significance of this matter with Mr Sivalingam - including the possibility of cancellation of the Company’s sponsorship approval - the Tribunal is satisfied that the Company is now fully aware of the risk of late lodgement of any future BAS on its status as an approved sponsor. In the circumstances of this case, the Tribunal is satisfied that it is reasonable to disregard this adverse information.
For these reasons the requirements of r.2.72(9) of the Regulations 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 the relevant instrument, IMMI 16/069. In certain circumstances this instrument may also require the nomination of an occupation be supported in writing by a specified organisation before the nomination can be approved: r.2.72(10)(b) of the Regulations.
As indicated above, the Tribunal is satisfied that the Company is a standard business sponsor and that the nominated occupation of Hair or Beauty Salon Manager as well as the corresponding 6-digit code ANZSCO 142114 appear on the relevant list in the relevant instrument. The instrument does not require that the nomination be supported in writing by a specified organisation.
For these reasons, the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) of the Regulations are not applicable.
Terms and conditions of employment and base rate of pay
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) of the Regulations . ‘Earnings’ is defined in r.2.57A of the Regulations 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 both 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: r.2.57A(2) of the Regulations.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the sponsor must determine the terms and conditions of employment that would otherwise be provided by a method specified in the relevant instrument, in this case, IMMI 09/113: r.2.72(10AA) of the Regulations.
Furthermore, r.2.72(10)(cc) of the Regulations requires the base rate of pay under the terms and conditions of employment must be greater than the Temporary Skilled Migration Income Threshold (TSMIT) specified by the Minister in an instrument, although this may be waived if the circumstances in r.2.72(10A) of the Regulations exist. The current TSMIT for the purposes of r.2.72(10)(cc) of the Regulations is $53,900: IMMI 13/028.
The requirements in r.2.72(1)(c) and 2.72(10)(cc) of the Regulations 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: r.2.72(10)(AB) of the Regulations. Annual earnings of $250,000 are currently specified.
The Tribunal has had regard to the terms and conditions of Ms Kansal’s proposed employment as set out in the Contract of Employment dated 30 June 2016 lodged together with the nomination application. The contract indicates that Ms Kansal’s annual base salary is $54,000. The contract also sets out the details of superannuation payable to Ms Kansal as well as leave entitlements. It has been signed by both Suji Siv (the name by which Mr Sivalingam is commonly known) on behalf of the Company and Ms Kansal.
In submissions to both the Department and in oral evidence to the Tribunal, Mr Sivalingam stated that there is no equivalent Australian employee performing the role of Salon Manager at the Company’s salon in Bomaderry. The updated Organisation Chart and payroll records provide to the Tribunal confirms these details. Ms Kansal is currently filling the role consistent with the terms of her current Bridging visa.
It is submitted by the Company that the terms and conditions of Ms Kansal’s employment are no less favourable than those that would be provided to an Australian performing equivalent work at the Salon. In support of this submission, the Company provided current market salary information from research undertaken by, amongst others, Payscale, Open Universities Australia and Live Salary Survey indicating that the annual base salary for a Salon Manager across Australia is between $39,603 and $59,156 with the higher range in metropolitan areas such as Sydney.
As there is no equivalent Australian employee at the Company’s salon in Bomaderry, the Tribunal has considered whether the terms and conditions of employment that the Company claims would be paid to an Australian have been determined according to the method in IMMI 09/113 as required by r.2.72(10AA) of the Regulations. There is no information to indicate that there is a relevant industrial instrument with provisions for the nominated position in operation at the sponsor’s workplace. The Company has indicated that an individual arrangement would apply to an equivalent Australian employee: it has individual agreements with other staff at the Salon.
On the basis of the evidence provided, the Tribunal accepts that the terms and conditions of employment of nominee Ms Kansal are equivalent to, and therefore will be no less favourable than, the terms and conditions that would be provided to an Australian employee performing equivalent work at the Salon. Accordingly, the provisions of r.2.72(10)(c)(ii) of the Regulations are met and, on that basis, r.2.72(10)(c) of the Regulations is met.
The Tribunal is also satisfied that the base rate of pay that would be provided to the Australian equivalent employee is greater than the TSMIT. Accordingly, the provisions of r.2.72(10)(cc)(ii) of the Regulations are met and, on that basis, r.2.72(10)(cc) of the Regulations is met.
For these reasons the requirements of r.2.72(10)(c) and r.2.72(cc) of the Regulations are 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). Relevantly, 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;
·the nominated occupation is with a business or an associated entity; and,
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The Tribunal is satisfied that the relevant certifications have been made in the Company’s nomination application and, accordingly, the requirements of r.2.72(10)(e) of the Regulations are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
In determining whether the position is genuine under r. 2.72(10)(f) of the Regulations 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. As expressed by Smith J in the Federal Circuit Court of Australia in Cargo First Pty Ltd v MIBP this requires the decision maker to consider whether the position really is what it purports to be.[1]The necessary qualitative analysis, as observed 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 ANZSCO in respect of the nominated occupation. It requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. This approach was endorsed by Flick J on appeal to the Federal Court of Australia in Cargo First Pty Ltd v MIBP.[2]
[1] [2015] FCCA 2091, Smith J at [30].
[2] [2016] FCA 30, Flick J at [36].
As noted above, based on documentation lodged with the Department, the delegate was not satisfied that the Company’s nomination of the position of Salon Manager for nominee Ms Kansal was genuine. Specifically, as set out in the decision record provided to the Tribunal, while satisfied that the nominated position exists the delegate was not satisfied that the position is what it purports to be having considered the size, structure and operations of the business as well as the ANZSCO description of the nominated occupation.
The Tribunal has had the benefit of significantly more information and documentation provided by the Company as well as oral evidence of the Company’s Managing Director Mr Sivalingam. Additional documentation provided by the Company includes, relevantly: BAS from 1 July 2013 to 31 December 2016; tax returns filed with the ATO for FY2013/14, FY2014/15 and FY2015/16; a revised Organisation Chart for the Salon; Payroll Activity Details for staff employed by the Salon; position descriptions for the Hairstylists employed by the Salon; and, an historical ASIC search for the Company.
About the Company and the Salon
Essentially, the Company operates 2 businesses. In Sydney, the Company engages 7 subcontractors who clean commercial and residential premises for more than 100 clients. Mr Sivalingam told the Tribunal that, a few years ago, he bought land and a house on the NSW south coast with a view to a retiring there in due course as well as for investment purposes. He said the cleaning business in Sydney takes up nearly all of his time but he cannot see it giving him a source of income when he wants to retires: it takes up too much time and he cannot see it reducing. With this in mind, he is building a duplex in Kiama having bought land near the beach at Bombo in June 2015. From there, it is a 20 minute drive to Bomaderry where he identified a business opportunity and purchased the Salon on 17 May 2016. Mr Sivalingam provided the Tribunal with a Rate Notice from Kiama Municipal Council dated 21 July 2016 addressed to him and his wife in relation to their residential property at Bombo.

Documentation provided by the Company confirms total revenue of $608,000 in the year ended 30 June 2014. This rose to $636,837 in the year to 30 June 2015 and then increased by 30% to $833,268 in the year ended 30 June 2016.
Mr Sivalingam told the Tribunal that, apart from nominee Ms Kansal, the Salon currently employs 3 Hairstylists: 2 of the Hairstylists work part-time owing to their family commitments and another works as a casual coming into the Salon when things get busy. The Hairstylists are all Australian citizens. The Salon operates from Monday to Saturday in the busy period from late November through to late January/early February but then drops back to 5 days per week for the rest of the year, apart from school holidays when the Salon gets busy again and it opens 6 days per week. At the time of lodging the Company’s nomination application in July 2016 one of the current staff members was a trainee. However, having completed her training, she is now working as a Hairstylist.
The position and the nominated occupation
The Company has nominated Ms Kansal in the position of Salon Manager. It has stated that the position corresponds to the occupation of Hair or Beauty Salon Manager ANZSCO 142114.
The Tribunal asked Mr Sivalingam about prior applications lodged by the Company nominating Ms Kansal. Mr Sivalingam acknowledged that this was the Company’s fourth nomination in respect of Ms Kansal. He admitted that it was partly his fault that so many nominations had been lodged but explained that he had relied on his former representative to assist with the applications. The Tribunal observed that a pattern of lodging multiple nomination applications raises concerns regarding the genuineness of such applications and, accordingly, whether the nomination application under review was designed to achieve a migration outcome for nominee Ms Kansal.
Mr Sivalingam told the Tribunal that the first nomination was for a Contract Administrator ANZSCO 51111 to be responsible for administering the Company’s more than 100 contracts with customers and its 7 contractors. The role included reviewing existing contracts, negotiating and preparing new contracts. He added that, with all the other things he has to do to run the business, he needed someone to help with administering contracts. When the initial application was unsuccessful because requisite documentation was not lodged with the application, a second nomination was lodged but the representative made a fatal error and lodged it for the position of Conveyancer ANZSCO 599111. It was a typographical error regarding the ANZSCO code and, when the representative realised this after the Department not unsurprisingly refused the application, the representative offered to prepare a third nomination for the Contract Administrator role. However, it too was unsuccessful but, in the meantime, having holidayed on the NSW south coast for many years he has bought land with a view to building a house there and started thinking about his retirement. So, he decided to buy a local business that would afford him an income in his retirement but one that does not require him to work the long hours his current cleaning business takes to run.
The Company’s representative provided the Tribunal with evidence that Ms Kansal has completed: a Certificate III in Hairdressing in June 2010 as well as an Advanced Diploma of Management in June 2011 at the Carrick Institute of Education; and, an Advanced Diploma of Business Administration in September 2013 at the Australian College of Vocational Studies. While she was studying, Ms Kansal worked at the Company's offices in Sydney assisting with administration of its many contracts. In the circumstances, Mr Sivalingam said she was the ideal candidate to manage the Salon. Mr Sivalingam said his wife now helps him with administration of the Company’s contracts. The Tribunal found Mr Sivalingam to be a convincing witness. The Company’s representative also provided the Tribunal with a detailed position description for the Salon’s 3 Hairstylists. Having reviewed the position description provided, the Tribunal is satisfied the Salon’s Hairstylists shampoo, cut, colour, style, blow-dry, straighten and permanently wave hair as well as treat customers’ hair and scalp conditions. These tasks are consistent with the tasks as outlined in ANZSCO for a Hairdresser ANZSCO 391111. Notably, the tasks as set out in the position description for the Salon’s Hairstylists do not include any management related tasks for the Salon.
The responsibilities and tasks of the position of Salon Manager with the Company are described in the Contract of Employment dated 30 June 2016 lodged with the nomination. The position is responsible for: profitably running the Salon; managing financial records including maintaining payroll and other business records; undertaking research to keep services up to date and on par with other local salons; liaising with wholesalers and other businesses to purchase products for the Salon; marketing and selling Salon products by giving special offers and promotions; hiring and training staff as well as managing staff and handling staff grievances/complaints; dealing with customer services; reviewing service standards; responding to grievances and complaints; ensuring cleanliness in and maintenance of the Salon; and, following health and safety procedures and rules. In the context of the Salon’s operations and the fact that it employs 3 Hairstylist, including one who works casually when the need arises, the Tribunal is satisfied that the tasks to be performed in the position of Salon Manager are consistent with the of tasks at the level described in ANZSCO for the occupation of Hair or Beauty Salon Manager ANZSCO 142114.
The Tribunal considers that the size of the Salon and the nature of its operations support the Company’s claim that it has a genuine need for a Salon Manager. The Tribunal is also satisfied that the nature of the role in the context of the Salon’s business’ operations, including the responsibilities and tasks to be performed, is consistent with the tasks outlined in the occupation of Hair or Beauty Salon Manager at the skill level described in ANZSCO.
Having considered all the evidence, the Tribunal is satisfied, for the reasons given above, that the position of Salon Manager which is proposed to be filled by nominee Ms Kansal and which is associated with the nominated occupation of Hair or Beauty Salon Manager ANZSCO 142114 is genuine.
For these reasons, the requirements of r.2.72(10)(f) of the Regulations 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 a relevant instrument. It is no current instrument for the purposes of this regulation.
The Department’s file contains a copy of the Contact of Employment dated 30 June 2016 which sets out the terms and conditions of the employment was lodged in support of the Company’s nomination application. Accordingly, the Tribunal is satisfied the requirements of r.2.72(10)(h) of the Regulations are met.
Labour Market Testing
Section 140GBA of the Act requires a standard business sponsor who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless either the major disaster or the skill and occupational exemptions in s.140GBB and s.140GBC of the Act apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
In this case, the nominated occupation is Hair or Beauty Salon Manager ANZSCO 142114. This occupation is classified as Skill Level 2 in the ANZSCO dictionary. All occupations which are classified in ANZSCO as Skill Levels 1 and 2 are specified for the purposes of occupational exemptions to the labour market testing requirements in s.140GBC(4) of the Act: IMMI 13/137. In the circumstances, the skill and occupation exemption to the labour market testing requirements in s.140GBC(2) of the Act are met and the Company is exempt from having to satisfy the requirement of s.140GBA of the Act.
For these reasons, the labour market testing requirements in s.140GBA of the Act are not applicable.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11) and r.2.72(12) of the Regulations. In this case, the Company is not a party to a work agreement and, for these reasons, the requirements of r.2.72(11) and r.2.72(12) of the Regulations are not applicable.
Conclusion
For the reasons given above, the Company 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.
Katie Malyon

Member
ATTACHMENT
Extracts from the Migration Regulations 1994

……

1.13A Meaning of adverse information
(1)Adverse information is any adverse information relevant to a person’s suitability as:
(a)an approved sponsor; or
(b)a nominator (within the meaning of regulation 5.19); or
(c)a maker of a nomination in accordance with a labour agreement;
and includes information that the person, or a person associated with the person:
(d)has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or,
(e)has, to the satisfaction of a competent authority, acted in contravention of such a law; or,
(f)has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or,
(g)is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or,
(h)has become insolvent within the meaning of subsections 5(2) and of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
(2)The matters are the following:
(a)discrimination;
(b)immigration;
(c)industrial relations;
(d)occupational health and safety;
(e)people smuggling and related offences:
(f)slavery, sexual servitude and deceptive recruiting:
(g)taxation:
(h)terrorism:
(i)trafficking in persons and debt bondage
(3)The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.
(4)In this regulation: competent authority has the meaning given by subregulation 2.57(1).

…….
2.72 Criteria for approval of nomination — Subclass 457 (Temporary Work (Skilled)) visa
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)    the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)    the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
Note The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).
(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
(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 that:
(i)     are provided; or
(ii)    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.
oOOo

[2017] AATA 549

18 April 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Appeal