CS AUTOMOTIVE SERVICES (LAVERTON) PTY LTD (Migration)

CS AUTOMOTIVE SERVICES (LAVERTON) PTY LTD (Migration) [2018] AATA 2749 (15 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CS AUTOMOTIVE SERVICES (LAVERTON) PTY LTD
CASE NUMBER:  1618789
DIBP REFERENCE(S):  BCC2016/2453845
MEMBER:Amanda Mendes Da Costa
DATE:15 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 15 June 2018 at 3:05pm

CATCHWORDS
Migration – Standard business sponsor nomination – Motor Mechanic (General) - Whether the position associated with the nominated occupation is genuine – Applicant did not respond to request for information – Insufficient evidence of genuineness of the position provided to the tribunal – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 2.72
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protectionv Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013]

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 28 October 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 24 July 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) 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 r. 2.72(1) (f) because the delegate did not consider the position associated with the nominated occupation to be genuine.
The applicant seeks to review the decision and for that purpose has provided a copy of the primary decision to the Tribunal.
For the following reasons, the Tribunal has decided to affirm the decision under review not to approve the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB (2).
Position must be genuine
Regulation 2.72(10) (f) requires that the position associated with the nominated occupation is genuine.
Recourse to the ANZCO occupational dictionary for a Motor Mechanic (General) 321211 indicates that that a motor mechanic tests and repairs petrol engines and the mechanical parts of lightweight motor vehicles such as transmissions, suspension, steering and brakes.
ANZCO describes the role of a motor mechanic involves detecting and diagnosing mechanical and electrical faults in engines and parts, dismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts, repairing and replacing worn and defective parts and reassembling mechanical component components, and referring to service manuals as needed, performing scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smooth running of vehicles and ensure compliance with pollution regulations, reassembling engines and parts after being repaired, testing and adjusting mechanical parts after being repaired for proper performance, diagnosing and testing parts with the assistance of computers, may inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness, may respond to vehicle breakdown service calls.
The Tribunal is satisfied from the Position Description provided to the Tribunal by the applicant that the duties to be performed by the nominee appear to be consistent with the role of Motor Mechanic (General) as described in ANZCO Code 321211.
The application for nomination approval was lodged with the Department on 24 July 2016. As noted the Department refused the nomination application in a decision made on 28 October 2016.
On 15 February 2018 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting it to provide information that demonstrated that the business meets all of the requirements of the criteria in r.2.72 of the Regulations at the time of the Tribunal’s decision. Annexed to the request for information was a copy of Regulation 2.72.
The invitation was sent to the last address provided in connection with the review and advised that, if the information were not provided in writing by 1 March 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it may otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 1 March 2018 the applicant wrote to the Tribunal, requesting an extension of time in which to provide information to the Tribunal. Although the Tribunal advised the applicant by letter on 2 March 2018 that it was not prepared to grant an extension of time in which to provide information that demonstrated that the business meets all of the requirements of the criteria in r.2.72 of the Regulations at the time of the Tribunal’s decision, the Tribunal did in fact grant the applicant an extension of time until 16 March 2018 to provide the information and advised the applicant in the letter of 2 March 2018, to that effect.
On 18 March 2018 the applicant provided the following documents to the Tribunal:
·Vehicle Condition Report.
·Taxation returns for the years ending June 2016 and June 2017.
·Advertisements for the position of motor mechanic – Seek.
·Organisational Chart.
·Financial Statements for the applicant, for the year ended 30 June 2017.
·Business Activity Statements for 2016 and 2017.
·ASIC Business Name Extract.
·Submissions regarding the genuineness of the nominated position, dated 16 March 2018.
On 24 April 2018 the applicant provided the following additional documents to the Tribunal:
·ASIC Extract for the applicant.
·Financial Viability letter from the applicant’s accountants dated 20 April 2018.
Given that the applicant did not provide a response within the stipulated timeframe, s.359C applies and pursuant to s.360 (3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1) (b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It is also had regard to the decision in Minister for immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for adjournment and the Federal Full Court decision in Minister for Immigration and Border Protectionv Singh [2014] FCAFC 1 which considered this issue, as well is a more recent decision in Kaur v Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets requirements in regulation 2.72 of the Regulations is likely to be forthcoming; whether the applicant has had a fair opportunity to provide the relevant information or documents already; and the significance of the informational documents of the applicant.
The Tribunal is had regard to the fact that the visa application was refused by the Department on 28 October 2016 because the delegate concluded that the position of Motor Mechanic (General) associated with the nominated occupation was not genuine and thus the applicant business did not meet the requirements of sub- regulation 2.72(10)(f). The applicant submitted a copy of the primary decision record with the review application as a result; the Tribunal observes that the applicant has been aware for more than 18 months of the reasons for the visa application refusal.
In these circumstances and for the reasons set out in this decision, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes it is uncertain if and when the applicant will provide information in writing as to whether the nominating business meets the requirements of regulation 2.72. The Tribunal is not disposed to delaying making a decision indefinitely.
Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of regulation 2.72.
The applicant operates a business from premises in Cobram and Hoppers Crossing, providing mechanical repairs to motor vehicles. The organisational chart for the business provided by the applicant to the Tribunal shows that apart from the director of the company and a manager, the business employs nine mechanics on a full-time basis, including the nominee.
The Tribunal notes that this organisational chart differs from the one provided to the Department by the applicant in 2016. The 2016 chart shows that apart from the director, there were three full-time mechanics employed at the Cobram workshop and three full-time and one part-time mechanic ( in addition to the nominee) employed at the Laverton workshop. The nominee’s position was described as being partly occupied by her. The 2016 organisational chart contains a notation that the staff requirement at the Cobram workshop was being ‘sufficed’ by temporary staff rotation until suitable staff were recruited.
The business advertises itself as providing specialist services to vehicles such as Mercedes Benz, BMW, Volvo, Audi and Peugeot and providing servicing, maintenance and repair of fleet vehicles.
The Tribunal notes that the Department was provided with a Statutory Declaration executed by Avneet Singh, a director of the applicant company. In this Declaration Mr Singh states:
“I have known Mrs Kamaljeet Kaur Gill, DOB 2./11/1994 since 2014.
I met Mrs Kamaljeet Kaur Gill at our work place, CS Automotive Services.
Mrs Kamaljeet Kaur Gill started as a volunteer in April 2014 at CS Automotive Services where we worked together on several occasions.
Mrs Kamaljeet Kaur Gill is a hardworking and efficient motor mechanic.”
The Tribunal notes that in the Nomination Form, the applicant states that the proposed base rate of pay per annum for the nominee is $54,000 with guaranteed annual earnings of $59,130. The applicant provided the Tribunal with copies of a number of advertisements posted on the ‘Seek” job site for the position of full-time motor mechanic, with a salary range from $50,000 to $69,999.
In its submissions to the Tribunal, the applicant described the role of the nominee as follows:
“CS Automotive Services (Laverton) have well-trained and qualified motor mechanics who are experienced in motor repair and servicing. A motor mechanic is a person who carries out the main operation of the business activity i.e. being responsible for repair, maintenance, and testing motor vehicles and internal combustion engines and such other related mechanical components.”
The Tribunal accepts that these tasks correspond to those set out in ANZCO Code 321211 for a Motor Mechanic (General).
The Tribunal notes that the applicant provided the Department with photographs purporting to depict the nominee performing mechanical repairs to a vehicle. Whilst the activities depicted in these photographs are consistent with the actions of a person repairing a vehicle, the Tribunal is not satisfied that they establish that the nominee’s current role with the applicant is a motor mechanic.
The Tribunal further notes that the applicant has also provided bank records for the company and Statutory Declarations by customers of the applicant, attesting to her skills as a motor mechanic. The information provided by the applicant to the Department also includes payroll advice slips for the nominee dated 31 May 2016; 14 June 2016; 28 June 2016; 12 July 2016; 26 July 2016; 9 August 2016 and 23 August 2016. The payroll advice slips show that the nominee was paid for working 38.40 hours per fortnight for a gross pay of $768.00 per fortnight. However, the Tribunal notes that the documentation provided does not reflect the current position of the nominee as a full-time employee and does not include the PAYG Annual Summaries for the nominee. Given that the applicant has not provided current earnings information or PAYG annual summaries for the nominee, the Tribunal is not satisfied as to the nominee’s current role with the applicant and that the nominee is currently employed as a full-time motor mechanic by the applicant.
In her decision, the delegate referred to the personal relationship between the director of the applicant and the nominee, who is married to the director’s cousin. The Tribunal finds that the existence of the relationship between the director and nominee alone is not evidence of a non-genuine position. The Tribunal does not attach any weight to the relationship between the director and nominee in determining whether the nominated position is a genuine one.
The Company tax return for the applicant for 2016 shows that the total income of the applicant was $388,990 with total expenses of $368,718. The company tax return for 2017 shows a total income of $417,280 with total expenses of $395,018. The Tribunal notes that wages and salaries for 2016 and 2017 are shown as totalling $234,905 and $271,447 respectively, with the amounts shown for superannuation contributions on both tax returns commensurate with those amounts.
On the basis of the financial information the 2016 and 2017 Taxation returns, the Tribunal is not satisfied that the applicant is able to employ nine full-time mechanics and that without current financial information the Tribunal is not satisfied that it is financially viable for the business to pay the nominee the salary it has proposed for the nominated position.
The Tribunal notes that in their letter regarding the viability of the business, the applicant’s accountants proffer the following opinion:
“We are writing to confirm that we act as Accountants and Tax Agents for CS Automotive Services (Laverton) Pty. Ltd. (ABN: 15 167 148 209).
We have reviewed their Financial Statements and we confirm that CS Automotive Services (Laverton) Pty. Ltd. (ABN 15 167 148 209) is financially viable and is able to meet future financial obligation.
This letter is prepared to the best of our knowledge and based on the information provided to us by the client …”
Given that the applicant’s accountants provided no grounds for their opinion regarding the financial strength of the applicant’s business, the Tribunal attaches limited weight to their opinion.
The Tribunal further notes that the applicant has not provided any documentation regarding the financial affairs of the applicant since June 2017, apart from the letter from its accountants. In the absence of contemporaneous information about the viability of the applicant’s business and by reason of the above, the Tribunal is not satisfied that the levels of business activity and staffing profile, support a finding that the nominee would regularly perform the tasks associated with ANZCO Code 321211 definition of a Motor Mechanic (General).
Accordingly, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72 (10) (f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Amanda Mendes Da Costa
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 2749

15 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice