Customcare Health Pty Ltd (Migration)

Customcare Health Pty Ltd (Migration) [2017] AATA 2231 (2 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Customcare Health Pty Ltd
CASE NUMBER:  1515876
DIBP REFERENCE(S):  BCC2015/2380491
MEMBER:Wan Shum
DATE:2 November 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 02 November 2017 at 3:48pm
CATCHWORDS
Migration – Nomination – Customer Service Manager – Standard business – Genuine position – Terms and conditions of employment – Evidence provided

LEGISLATION

Migration Act 1958, ss 140GB
Migration Regulations 1994, rr.1.13A,1.13B,.r.2.72 r.2.73

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 12 November 2015 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 August 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 was not satisfied that the position is genuine and decided not to approve the nomination, finding that the nominator did not satisfy r.2.72(10)(f).
The nominator has sought review of that decision. A representative was appointed in relation to the review.
Mr Horatio Ng appeared on behalf of the nominator at a hearing of the tribunal on 18 October 2017. A representative from the same migration firm attended 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 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).
The nomination was for the occupation of Customer Service Manager and identified Ms Kwai Ling Wong, the visa applicant, as the person who will work in the nominated occupation.
The business of the nominator since it began operating in 2005 is a compounding pharmacy, which specialises in providing medical compounding services to clinics and hospitals. The customised medication is not available or accessible through normal pharmacies. The business has retail customers, who walk into the retail store or order online, and non-retail customers which include patients, clinics, day surgeries, private hospitals and doctors surgeries, who may order medication for 120 patients at a time. Mr Ng and his wife are the owners and directors of the business. The business employs 29 staff.
Mr Ng and his wife, Irene, want to employ Ms Wong, who is the sister of Irene as a Customer Service Manager.
According to the organisation chart provided and the evidence at the hearing, the nominator employs 11 people in the retail pharmacy arm, with a Team Leader, Assistant team leader and customer service assistants. The compounding pharmacy arm employs a full-time compounding pharmacist manager and four full-time lab technicians. There are also 5 pharmacists, a dispensary assistant and a retail pharmacist manager, and the nominator employs a coordination manager to manage the delivery of medicines and two part-time delivery assistants. This ensures timely delivery of medicines, which can be critical when medicines are required urgently or need to be kept at a certain temperature. They also employ two business service/business development managers (one full-time, and one part-time) who are essentially salespersons. They have also recently employed an analytical chemist to test the formulations to ensure the quality and stability of the medicines made. This testing was previously undertaken by a third party but the turnaround was a bit slow.
The nominator’s employees are all Australian citizens or permanents residents and it has never attempted to sponsor a person previously. They have employed another relative, Ms Amy Ho, who is another of Irene’s sisters for 8 or 9 years.
The organisation chart has the proposed Customer Service Manager position being relevant to each arm of the business, other than the analytical chemist. The chart shows each arm reporting to the CSM and then to the owners. However, the Tribunal noted a salary difference between the nominated position and other positions with ‘manager’ in the title. Mr Ng explained that the chart provided did not strictly reflect the reporting lines, but the other employees would be required to engage with the CSM for customer service matters. Currently all customer related matters were being dealt with by the Directors including refund authorisations, but they need to focus on product and company development.
In terms of the CSM position, Mr Ng explained that he and his wife had personally been dealing with these matters previously but that due to business growth they needed to have processes to deal with customer related matters and relevant procedures put in place. He expected the CSM to develop these procedures.
Following amendments to the Regulations and applicable Instrument which directly affected the occupation of Customer Service Manager, including the period of the visa, the Tribunal raised these with Mr Ng to ensure that there was an intention to continue with the nomination.
Mr Ng considered that, while it was desirable for a longer visa period, in two years a lot could be done including implementation of a proper system in place for dealing and handling customer service matters; He added that he expected the CSM position to assist with human resource matters in particular recruitment. He wanted the CSM to screen all potential employees and undertake the initial interview, and then the directors would have the final say. Mr Ng said that this would take up perhaps 10% of the person’s time. The other 90% of the time they would develop procedures for the different departments, customer involvement at all levels in the laboratory, retail store, office and clinic as well. The CSM would have an involvement with the marketing team, providing guidance/training on how to communicate with doctors/clinics. He said that one of the current business development managers does not necessarily have the best communication skills. He expected the CSM to analyse reports and monitor statistics on sales.
The plan for the business in the short term is to expand the pharmacy and create a bigger laboratory. Mr Ng referred to a development application which was to be lodged for this purpose, and a copy of the tax invoice issued by Hornsby Shire Council in connection with the application was submitted following the hearing.
The Tribunal notes that when the application for review was initially lodged, evidence of business plans to expand into South Australia were given. The directors have since done that, but through a different business, Pharmacyplus Pty Ltd. They have also established another business selling fruit and vegetables, Freshisca Pty Ltd, which Mr Ng advised was being managed by his brother.
Is the position genuine?
The delegate was not satisfied that the business was operating at a level that would indicate that the nominated position was genuine. The delegate was not satisfied that the nominee is likely to be actually performing the full breadth of duties as defined in ANZSCO in the relatively modest financial environment of a business of this scope and scale.
As the delegate did not consider the position to be genuine, the Tribunal will first consider whether r.2.72(10)(f) has been met.
In reaching its decision, the Tribunal has referred to the ANZSCO description of the occupation of Customer Service Manager extracted below:
UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS
CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
Indicative Skill Level:

Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
·ensuring operational efficiency within a call centre
·providing direction and feedback to team members and assisting with recruitment
·managing, motivating and developing staff providing customer services
·planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
·liaising with other organisational units, service agents and customers to identify and respond to customer expectations
·may work in a call centre
Occupations:
149211 Call or Contact Centre Manager

149212 Customer Service Manager
…
149212 CUSTOMER SERVICE MANAGER
Alternative Titles:
Client Service Manager

Service Manager
Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
Skill Level: 2
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Tribunal notes that this is a new position and it is submitted that the owners have themselves been undertaking the majority of the duties as set out in the position description to date. Mr Ng gave evidence that he works a 100 hour week on average and that he and his wife had been dealing with customer matters themselves but needed assistance. He said there were some policies in place but they had not been able to properly analyse the data in relation to repeat customers and there are only limited procedures in place currently for complaints handling and dealing with phone orders. There is a standard operating procedure for the lab and also a store policy for the retail store but Mr Ng claimed that a standard operating procedure for the business as a whole was required in relation to refunds, complaints and that proper procedures are in place. There is limited follow up with customers, and the directors would like this to be addressed by the nominee.
When asked about the duties of the position, Mr Ng gave an overview of the day to day duties of the Customer Service Manager, and expects the position to look at the whole process and anything related to the customers of the business which include patients, clinics, specialist and day surgeries. The CSM will need to ensure that the phone calls, emails and faxes are dealt with in a timely manner, deal with customer issues including refunds, monitor the time taken to handle customer enquiries and review feedback received by the marketing team from clinics. Mr Ng confirmed that the position is based in the office and not the retail store, although the CSM will liaise with the store team leader about customer related matters. Mr Ng said the position would be a combined position and involve human resource duties as well, such as staff recruitment and screening potential candidates for jobs with the business. In terms of staff training, his wife currently does on-the-job training. He advised that there is external training for staff as well regarding drug products, some of which is paid for by the business and other times the drug companies provide free training in relation to their product(s). The CSM is to organise staff training.
The organisation chart provided, and Mr Ng’s explanation at the hearing, indicates that the Customer Service Manager is to be involved with all arms of the business, other than the analytical chemist. The Tribunal accepts Mr Ng’s evidence that they are hoping to further grow the business and it has taken into the recent lodgement of a development application in respect of modification of existing use to further expand the laboratory and extend the compound pharmacy.
On the basis of this evidence and the documents provided, the Tribunal accepts that the Customer Service Manager role will plan, administer and review customer services and after-sales services for the business. While it notes Mr Ng’s evidence that the position will be involved in other tasks including recruitment, the Tribunal accepts that this is in addition to the tasks concerning customer relations which is the main focus of the position.
The Tribunal has taken into account the size of the business, the profit and loss statements for the past three years, and other evidence including the customer base of the business. While the turnover in 2017 did not match the projected turnover of $15 million set out in the analysis undertaken by the accountants of the business, Cohort Partners, in 2015, the Tribunal accepts Mr Ng’s evidence that the drug values have been lowered due to the price disclosure policy of the government. This has had an impact on the prices for the product that they provide and the sales figures have also dropped. Mr Ng gave evidence that the customer base has increased so they have still been able to achieve over $11 million turnover. The Tribunal noted, and Mr Ng affirmed, that this meant that the cost of goods sold would have also been lower in terms of drug prices. The Tribunal notes that, based on the draft income statement provided, while the total revenue for the 2017 financial year is lower than the 2016 financial year, the cost of goods sold are also lower reflecting the claimed drop in drug value. The Tribunal requested a breakdown of sales attributable to retail and non-retail customers and was advised after the hearing that for 2017, total retail sales amounted to $2,538,146 and non-retail sales totalled $8,569,714. In 2016, these amounts were $2,469,907 and $8,938,441 respectively. In relation to the customer base, the figures provided for 2017 was a total of 53,599 retail sale customers and 34,506 non-retail sale customers which consist of patients, clinics, day surgery, private hospitals and doctor’s surgeries. It was explained that clinics, day surgery, private hospitals and doctor’s surgeries may order up to 120 patients’ medications at one time, but it would only show as one customer on their database.
Having carefully considered all the new documentation and oral evidence provided, and in light of the planned growth and nature of the business, the Tribunal accepts that the position associated with the nominated occupation is genuine. The financial statements and other documents indicate that the turnover of the business is reasonably high, and reflects that of a medium sized business (having regard to information from the ATO website which refers to small businesses having turnover of less than $10 million as being eligible for certain tax concessions, while a large business is defined as having a turnover level above $250 million). The Tribunal notes that the occupation is now on the Short-term skilled shortage list which means that it is a two year position. In that time, it should be possible to develop and implement customer service policies and procedures and any benefits from the position will become apparent in this timeframe. It notes further that the business expansion plans referred to in the submission provided to the tribunal two years ago include building a compounding lab, which has occurred, and the purchase of the pharmacy in South Australia (albeit under a different business entity).
For these reasons the requirements of r.2.72(10)(f) are met. The Tribunal considers the position to be genuine but it has not made an assessment as to the nominee’s suitability for the position. This will be undertaken when an assessment of her visa application is made.
Given this finding, the Tribunal has considered the other requirements in r.2.72.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The applicant in this case is nominating an occupation under s.140GB(1)(b) and has identified an applicant for a Subclass 457 visa as the person who will work in the occupation for the purposes of r.2.73(1A). On the basis of material on the Department’s file, the Tribunal finds that the nomination was made using the approved form and fee (r.2.73(2), (3), (5) & (9)); the nominee has been identified in the nomination (r.2.73(4A)) and the nomination includes the location at which the occupation will be carried out, and the name and 6 digit ANZSCO code (r.2.73(4)).
As the application was made before December 2015, r.2.73(4B) does not apply.
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Documents before the Tribunal indicate that the applicant is an approved standard business sponsor for the period 2 September 2015 to 2 September 2020.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation be identified in the nomination.
In its application the nominator has identified Kwai Ling Wong as the applicant for a Subclass 457 visa who will work in the nominated occupation. The visa applicant is a relative of the directors.
As the visa holder has been identified in the nomination, the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant stated in the nomination application form that the nominated occupation is Customer Service Manager and gave as the ANZSCO code “Customer Service Manager”. The ANZSCO code for this occupation is 149212. The location at which the occupation is to be carried out was given as Dural, NSW.
For these reasons the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or an ‘associated person’.
For these reasons, the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the applicable instrument, which is currently IMMI 17/060. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The nominated occupation of Customer Service Manager does correspond to an occupation in IMMI 17/060. The instrument does not require that the nomination be supported in writing by a specified organisation.
Since the nomination application was made, changes to the Subclass 457 visa program were made effective 19 April 2017. These changes include caveats introduced to certain specified occupations. The occupation of Customer Service Manager (ANZSCO 149212) is one of these occupations. For the purpose of paragraph 2.72(10)(aa) of the Regulations, the relevant instrument provides that the specification of that occupation excludes any of the following:
·     Positions based in a front-line retail selling, or predominately involves direct client transactional interaction on a regular basis;
·     Positions in a business that have an annual turnover of less than AUD 1 million;
·     Positions that have a nominated base salary of less than AUD 65,000.
The financial information provided demonstrates that in the previous three financial years (financial years ending 2015, 2016 and 2017), the nominator has an annual turnover of over AUD 11 million. While the financial statements for financial year ending 30 June 2017 were provided to the Tribunal in draft form, Mr Ng gave evidence at the hearing that the financial statements were unlikely to change and the Tribunal notes that the total sales figure is consistent with the activity statements provided for that period. The annual salary for the position was AUD 68,000. Both of these are above the minimum amounts set out in the Instrument.
In relation to the nature of the nominated position and its duties, and the evidence provided, it was submitted that the position is based in the office and not the retail store. The Tribunal notes that according to the organisation chart, there is a team of 11 people, including a team leader, employed in the retail store. Thus, while there is a front-line retail arm of the business, and the Customer Service Manager is expected to be engaged with training and advising staff members assisting customers, the Tribunal accepts that the position is not based in front-line retail selling. Furthermore, while the Customer Service Manager is expected to resolve customer satisfaction problems that may arise, and in this capacity may have direct contact with customers, the Tribunal does not consider that this means that the position will be predominantly involved in direct client transactional interaction. It also accepts that the team leader role is effectively a retail manager position and that the Customer Service Manager is a separate and distinct role.
On the basis of the above information the nominated occupation is specified, as the position is not one for which the occupation is inapplicable.
Therefore, on the basis that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument, the requirements of r.2.72(10)(aa) are met.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB).
The nominee’s base rate of pay, as reflected in the recent contract, is $68,000 per annum, exclusive of superannuation. The relevant instrument, IMMI 13/028, specifies the threshold at $250,000. As the nominee’s annual rate of earnings is less than this, the applicant is required to be assessed under r.2.72(10)(c).
The nominee’s terms and conditions of employment are set out in her contract of employment. There is no other Australian citizen or permanent resident performing the same work in the same location.
Therefore, in the absence of an equivalent Australian employee, the Tribunal must use the methodology prescribed in Schedule A to legislative instrument IMMI 09/113, for the purposes of r.2.72(10)(AA).
In considering that instrument, the Tribunal finds there is no fair work instrument, state industrial instrument or transitional instrument that would apply to an Australian that is performing the role of Customer Service Manager. In the circumstances the Tribunal has considered the inclusive examples of ‘relevant information’ listed in the instrument, such as job vacancy advertisements and remuneration surveys, in order to determine what would be payable to an Australian performing equivalent role. In particular the Tribunal has had regard to more recent evidence provided by the applicant of the salary range and terms and conditions for similar positions that have been advertised, as well as information from the Job Outlook website of the market rate of pay for an employee for the role of Customer Service Manager. Having regard to this evidence the Tribunal is satisfied that the terms and conditions that apply to the position are equivalent to and therefore 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 (r.2.72(10)(c)).
In addition, r.2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment will be greater than the Temporary Skilled Migration Income Threshold specified by the Minister in an instrument (although this may be waived if the circumstances in r.2.72(10A) exist). The current Temporary Skilled Migration Income Threshold (TSMIT) for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028. On the basis of the above evidence, the Tribunal is also satisfied that the base rate of pay that would provide to the Australian equivalent employee is greater that the relevant TSMIT (r.2.72(10)(cc)).
For these reasons the requirements of r.2.72(10)(c) and r.2.72(10)(cc) are met.
The Tribunal is therefore satisfied that the nominee’s terms and conditions of employment are in relevant respects no less favourable than those that are or would be provided to the Australian citizen who is performing equivalent work at the same location.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or the relevant specified in the instrument;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.
The information before the Tribunal is that the nominator has provided the relevant certifications when making the application in relation to the tasks of the position and, as the applicant operates a lawful business located in Australia, the nominated occupation being with the business. Furthermore, the qualifications and experience under ANZSCO is a level of skill commensurate with an associate degree, advanced diploma or diploma or at least 3 years of relevant experience. As the associated visa applicant claims to hold a Bachelor degree, the nominee appears to have qualifications commensurate with those specified for the occupation in the ANZSCO.
The Tribunal is satisfied on the basis of the relevant certifications in the application form that r.2.72(10)(e) is met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The Tribunal has been provided with a copy of the employment contract, recently signed by Mr Ng and the nominee. It reflects the increased salary of $68,000 and for a start date to be advised.
The requirements of r.2.72(10)(h) are thus met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.
In this case, the nominated occupation is Customer Service Manager, ANZSCO 149212. This occupation is classified as Skill Level 2 in the ANZSCO. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(a): IMMI 13/137. In these circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the labour market testing condition in s.140GBA.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Conclusion
Having considered the additional material provided and the oral evidence of one of the Directors, the Tribunal has found, for the reasons given above, that the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Wan Shum
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.
(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 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.

[2017] AATA 2231

2 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Appeal