DAIWA FOOD CORPORATION (SYD) PTY LTD (Migration)

DAIWA FOOD CORPORATION (SYD) PTY LTD (Migration) [2018] AATA 1885 (21 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  DAIWA FOOD CORPORATION (SYD) PTY LTD
CASE NUMBER:  1612334
DIBP REFERENCE(S):  BCC2016/1408675
MEMBER:Denise Connolly
DATE:21 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 21 May 2018 at 4:58pm

CATCHWORDS
Migration – Approval of nomination – Nominated occupation – Sales and Marketing Manager – BAS Statements – Duties of the position – Position description – Needs of an employee – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 245AR, 359
Migration Regulations 1994, r 2.72
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 2 August 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 9 April 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 applicant operates a Japanese restaurant supply business. The business has branches in Sydney, Melbourne, Brisbane and the ACT. At the time of application the applicant provided an organisational chart indicating the ACT branch, the location of the nominated position, has an accountant, a sales and marketing manager (the nominee), a driver and an accounts clerk. It has submitted that its Sydney operation had a turnover of $13.6m in the 2015 financial year and the ACT branch turned over $1.15m in the same year. It provided evidence that in the first 10 months of the 2016 financial year its ACT turnover was $1.17m. It has nominated the occupation Sales and Marketing Manager (ANZSCO 131112).
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied the business was operating within a competitive complex business environment. Also he found the evidence provided to be insufficient to demonstrate a need for a Sales and Marketing Manager in the ACT branch. He was not satisfied the position associated with the nominated occupation is genuine.
Mr Charles Pai, Director, appeared for the applicant before the Tribunal on 5 March and 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Takuya Sakamoto.
The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 applicant operates a Japanese restaurant supply business. It has nominated the occupation Sales and Marketing Manager to be located in Fyshwick ACT. At the time of application the applicant provided an organisational chart indicating the business employs about 10 people in its Sydney branch, including a Sales Manager, and 5 people in the ACT branch including the nominee in the position Sales and Marketing Manager. The applicant provided a contract of employment, signed by the applicant and the nominee on 5 May 2016, and a position description indicating the position would perform the following tasks:
·create and implement effective direct sales strategies and lead nationwide direct sales staff toward achievement of corporate sales objectives
·develop competencies and processes required to create an effective and efficient sales organisation
·provide leadership through effective communication of vision, active coaching and development while comparing sales results to goals and taking appropriate action to correct when necessary
·provide sales management, budget control, compensation programs and incentive planning
·ensure effective training, development and retention of sales staff
·provide supervision through field visits, observations and measurements of results
·proactively identify changes in the market, deliver strategies and competitive pressures to develop and modify strategies and tactics accordingly
·prepare monthly, quarterly and annual sales forecasts
·manage to meet/exceed monthly, quarterly and annual sales forecasts
·partner with the Manager - Corporate and Strategic Accounts in the development of key customer relationship management
·negotiate purchase agreements with customers
·establish effective relationships and collaborations with other departments (Driver, Telephone Operator, Business Development, etc) to address key business issues and opportunities
·maintain competitive knowledge to create and adjust sales strategies.
The applicant provided evidence relating to the average salary range paid to a Sales and Marketing Manager. The applicant nominated a salary of $55,000 per annum.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. Having considered the ANZSCO description for the nominated occupation, the delegate formed the view a Sales and Marketing Manager is a high level, specialised role that makes strategic contributions including planning, organising, directing, controlling and coordinating the sales and market activities within an organisation. The delegate formed the view that the position is typically associated with organisations operating within a competitive and complex business environment with a significant number of staff, resources, services/product lines and client commitments. While acknowledging that some of the duties to be performed by the nominee are consistent with the role of the occupation, when assessing the claimed duties of the nominee in the context of all the information provided, the delegate was not satisfied that the proposed tasks that the nominee would undertake aligned substantially with the tasks of the nominated occupation. He was not satisfied the applicant has demonstrated that the business is operating within a competitive and complex business environment with a significant number of staff, resources, services/product line commitments. He did not consider the financial turnover in the ACT branch to be sufficient to warrant a Sales and Marketing Manager. He noted that the applicant had not provided sufficient evidence of current or immediate future client commitments such as secured contracts. He was not satisfied that the nominee would be likely to be regularly performing the breadth of duties as defined in ANZSCO for the nominated occupation.
In response to a s.359(2) letter inviting the applicant to provide information demonstrating the requirements of r.2.72 are met, the applicant provided the following information:
·a written submission which asserts the turnover for the ACT branch in the 2017 financial year was about $1.94 million, while the turnover in NSW was about $21 million. The applicant also advises that more locations have been added including Queanbeyan West. The company has also started trading with the following major clients:
·   Paparich Group
·   Breadtop
·   Woolworths (Supermarket)
·   Ippudo
·   Coles
·ATO GST view activity statements for:
·   April 2017 to June 2017 recording total sales of $5,170,077;
·   January 2017 to March 2017 recording total sales of $5,377,426;
·   October 2016 to December 2016 recording total sales of $$5,217,849;
·   July 2016 to September 2016 recording total sales of $5,292,886.
·Telephone bills.
Despite the invitation to provide information demonstrating all of the requirements of r.2.72 are met, the Tribunal noted that the Department’s electronic records indicated that the applicant was no longer an approved standard business sponsor, as the sponsorship expired in September 2017. On 23 February 2018 it arranged for a case officer to contact the applicant’s representative and explain that the Tribunal cannot approve the nomination if the applicant is not an approved standard business sponsor.
At the hearing on 5 March 2018, by video conference, the Tribunal explained the requirements of r.272, including the requirement that the applicant is an approved standard business sponsor. The Tribunal noted that it had written to the applicant in November 2017 inviting the applicant to provide evidence that all the requirements of r.2.72 are met. The applicant stated he had just made a new application for approval is a standard business sponsor. The applicant apologised for the oversight and confirmed that the Department had not yet approved the SBS application. The Tribunal adjourned the matter to allow the applicant to appear in person.
At the hearing on 26 April 2018 the Tribunal discussed with the applicant all of the relevant requirements of r.2.72 and explained that they all needed to be met before the nomination could be approved. The following is a summary of the evidence provided by the applicant and the nominee at the hearing. It is not a transcript of the hearing.
The applicant confirmed that the SBS application had not yet been approved.
The Tribunal asked the applicant to describe the company and its business. The applicant indicated that it originated in Melbourne where there are about 50 people employed. The business is a wholesale business which imports and sells products from Japan and China. It also sells some domestic products. The main clients are restaurants and supermarkets. There is a National Sales Manager Toshi Otaka based in Melbourne who oversees performance, and collects and analyses results from each of the business’ branches. He also develops new programs for implementation within each branch to improve their sales. For example he will decide on monthly specials, focusing on which categories to promote on a monthly basis. This strategy goes to all branches, and then it is up to the branch manager to implement the National Sales Manager’s program. Toshi also looks after groups of restaurants, visits customers and demonstrates products. There is also another Sales Manager Ken Toksukawa who is based in Sydney. The ACT Manager (the nominee) reports to Ken and Ken reports to Toshi.
The Tribunal asked the applicant about Ken’s role. He indicated that he is the Sales and Marketing Manager in Sydney. He visits customers, identifies new product opportunities and demonstrates products to prospective restaurant customers. He works in the Sydney office which employs about 50 people, 4 of which are customer service officers. He is responsible for different products and assists with deliveries from the Mascot warehouse. There is also a second warehouse in Campbelltown. The ACT warehouse is based in Queanbeyan.
The Tribunal noted that the BAS statements did not record salaries indicative of the number of staff. The applicant indicated that there is another company, Daiwa Food Logistics Pty Ltd, and most of the staff are employed by this company. It employs about 60 or 70 drivers. The representative indicated that the salary recorded in the BAS is a monthly salary and not the salary expenditure for the quarter.
The Tribunal asked about the ACT branch. Along with the nominee, the ACT branch employs five or six people, drivers and two customer service officers. The Tribunal asked about the business needs for the position in the ACT. The applicant indicated that the nominee will implement Toshi’s programs. He will visit restaurants in the ACT which are more diversified than in other branches. The position will look after the delivery team and the customer service officers. It will also receive customer feedback. If the customer wants to meet with the Sales and Marketing Manager he will go out to meet them in person. The position would visit customers on a daily basis. The position oversees all of the activities in the ACT office. Customer payments are collected in the ACT and the nominee and customer service officers deal with the money. There are other competitors in the ACT but the business is building slowly. He confirmed that the nominee is currently working in the required position in the ACT. The Tribunal asked if the position will be required to undertake any other duties. He indicated that the position will travel to Sydney to learn from Ken about new products.
The Tribunal noted that the organisational chart indicates that the ACT has a Branch Manager. It asked about the duties of the branch manager. The applicant confirmed that these duties have been taken over by the nominated position in which the nominee works. The position has taken over the administrative duties of the branch manager. The Tribunal noted that the ACT branch of the business has a Customer Service Manager. It asked about the duties of that position. The applicant indicated that the person holding the position is now based in Brisbane. She looks after the customer service offices nationally by receiving reports. She interacts with the nominated position about customer feedback. They also discuss deliveries, operational matters and logistics. The applicant confirmed that the nominee has been employed in the position undertaking the duties required for the position by the business.
The Tribunal asked about the nominee’s terms and conditions. The applicant confirmed that a new contract was signed in July 2017 paying the nominee a base salary of $65,000 and that he has been paid accordingly. However this is not verifiable because the business has been paying the nominee in cash. The Tribunal asked why the business would pay one of its managers in cash. The applicant indicated that that was what the nominee wanted. The Tribunal asked if the nominee’s superannuation had been paid in accordance with the statutory requirements and the applicant indicated he thought so.
The Tribunal asked the applicant whether the terms and conditions to be provided to the nominee were equivalent to terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. The applicant indicated that there is no other Sales and Marketing Manager at the ACT branch. He indicated that Ken is a permanent resident and is on a base salary of $65,000 per year. He indicated that Ken is more senior than the nominee but he is paid the same base salary because he also has a company car. The terms and conditions were prepared on the basis of those received staff in the business and information in the website Payscale.com.
The Tribunal discussed with the applicant the ANZSCO description for the nominated occupation. The Tribunal raised its concern that the position may not be that of a Sales and Marketing Manager which is a strategic role. It noted that the business visits customers on a daily basis. It noted that it may form the view that in fact Toshi is the business’ Sales and Marketing Manager. The applicant indicated that Toshi is from a different entity. He communicates with the different branches but they each have their own direction for market growth. The Tribunal noted that the applicant had previously indicated that Toshi refers his programs to the branches for the local managers to implement.
The Tribunal explained that there are caveats set out in the relevant instrument (IMMI 17/060). It noted that there is a caveat for the occupation, Item 11 which states in part that the occupation is inapplicable if the position predominantly involves direct client transactional interaction on a regular basis. The Tribunal indicated that it may form the view that the position described is one that predominantly involves direct client transactional interaction on a regular basis, given that the applicant had told the Tribunal that the position would go out and visit customers every day. The applicant indicated that the business has individual customers and group customers. He indicated that the position has interaction with group customers, not individual customers. For example in the ACT there is a franchise business, Papa Rich, a Malaysian food outlet. The nominee visits the restaurants but also has contact with their head office for feedback about products. The position also deals with Breadtop head office - it has engaged the business’ logistics services. The nominee arranges the delivery of their products from Sydney to the ACT.
The Tribunal went through the other requirements of r.2.72 noting that the standard business sponsor ship application was not made until March 2018. The applicant confirmed that the nominee has not been a holder of a Subclass 457 visa; he held a Subclass 417 visa when he started working with the business. There is no adverse information known to Immigration.
The Tribunal took evidence from the nominee who confirmed that he started working for the business in 2015 or 2016 and in the position in July 2017. His evidence about his duties was consistent with that of the applicant.
After the hearing the applicant provided further evidence including the following:
·ATO view activity statements for the business and the related business Daiwa Food Logistic Pty Ltd showing salary expenditure
·statement clarifying the position, indicating that even although the nominee has regular contact with customers, this contact is following up with group customer head office management. He has high level discussions and not in a frontline retail setting and not predominantly direct transactional interactions.
·Ken Totsukawa’s PAYG payment summary for the 2017 financial year indicating gross payments of $55,764
·payslips for the nominee recording an annual salary of $65,000
·notification of approval is a standard business sponsor dated 16 May 2018.
The Tribunal has had regard to the ANZSCO description for the nominated occupation Sales and Marketing Manager. While it is not bound by this description it finds it a useful tool for considering the tasks typically undertaken by the nominated occupation, the level of complexity of the occupation and its indicative skill level. The relevant parts of the ANZSCO description state as follows:
UNIT GROUP 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS
ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
odirecting the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty
odirecting the development and implementation of strategies to promote an organisation's goods and services to as many people as possible
odirecting the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'
odirecting the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

Occupations:
131112 Sales and Marketing Manager
131113 Advertising Manager
131114 Public Relations Manager

131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1
The nomination must comply with the prescribed process
30.Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
31.On the basis of information on the Department’s file, the Tribunal is satisfied that the applicant identified Mr Takuya Sakamoto as the proposed applicant for a Subclass 457 visa who will work in the nominated occupation of Sales and Marketing Manager (131112). The Tribunal is also satisfied that the application was made on the approved form which included the relevant certification regarding non contravention of s.245AR(1) of the Act. The Tribunal is also satisfied that the nomination includes the location, Fyshwick, ACT, at which the occupation will be employed.
32.The requirements of r.2.72(3) are therefore met.
Nominator is a standard business sponsor or party to a work agreement
33.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.
34.The applicant has provided a letter from the Department dated 16 May 2018 confirming the applicant has been approved as a standard business sponsor until 16 May 2023.
35.For these reasons the requirements of r.2.72(4) are met.
Position must be genuine

Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The delegate refused to approve the nomination on the basis that this requirement was not met. Having considered the written material, and the size and nature of the business, the delegate was not satisfied the position would undertake the duties described in ANZSCO for the occupation Sales and Marketing Manager. While the Tribunal accepts the business needs an employee to undertake a range of duties in the ACT branch, and it accepts that the business has grown since the nomination application was made, for the following reasons it is not satisfied the position associated with the nominated occupation is that of a Sales and Marketing Manager.
The Tribunal has considered all of the evidence before it. The applicant’s written submissions about the position description indicate it is a strategic leadership role, creating and implementing effective direct sales strategies and leading nationwide direct sales staff, developing competencies and processes, providing leadership, sales management and budget control. It also describes the position as a managerial role involved in training, developing and retaining sales staff, supervising field visits, preparing sales reports and forecasts, negotiating purchase agreements with customers, establishing effective relationships with other departments and maintaining competitive knowledge. Overall having considered all of the written material and the oral evidence the Tribunal is of the view this description of the position is significantly different to the oral description provided at the hearing. On the basis of the information provided to the Tribunal at the hearing, the Tribunal is of the view that the position needed by the business in the ACT will undertake the following duties. The nominee will implement the programs of the National Sales Manager, Toshi in the ACT branch. The position will visit restaurants in the ACT, meet customers and group customer head offices on a daily basis. The Tribunal has taken into account the applicant’s evidence provided after the hearing that these meetings are high level discussions, however it has concerns that this is inconsistent with the applicant’s earlier oral evidence, that the position will visit customers in restaurants. It is not satisfied the position will only conduct high level discussions with customers.
The Tribunal is satisfied the position will look after the delivery team and the customer service officers in the ACT, and deal with customer feedback. The position will also oversee other activities in the ACT office including the administrative duties previously undertaken by the Business Manager. It will deal with payments. The position will travel to Sydney to learn from the position’s manager about new products. It will liaise with the Customer Service Manager about deliveries, operational matters and logistics. The position will deal with Breadtop as that business has engaged the applicant’s logistics services. The position will arrange the delivery of Breadtop’s products from Sydney to the ACT.
When the Tribunal raised concerns about whether the position was predominantly involved direct client transactional interaction on a regular basis, the applicant indicated that the manager has interaction with group customers not individual customers. This evidence is somewhat different to his earlier oral evidence when he indicated the position will visit restaurants and customers daily. However the Tribunal accepts those customer visits include for example franchise businesses, such as Papa Rich. It also accepts the position will have contact with head offices for feedback about products.
Overall the Tribunal is of the view the position will play an operational role, rather than a strategic one. The Tribunal accepts that there is some management involved, but it is of the view the position has some general business management duties, such as organising logistics. It is not satisfied that the position will lead nationwide direct sales staff as claimed in the written submissions. It accepts the position may supervise and lead the two customer service officers in the ACT branch but it is not satisfied it is a strategic leadership role. Nor is it satisfied the position creates and implements effective direct sales strategies. The applicant provided no oral evidence indicating the position prepares sales reports and forecasts or negotiates purchase agreements. Overall the Tribunal is not satisfied the written submissions about the duties of the position genuinely reflect the business’ needs for the position.
Having considered the duties required of the position by the business, the Tribunal is not satisfied the business needs the position to plan, organise, direct, control and coordinate sales and marketing activities nationally or for the ACT branch of the business at the level of complexity indicated by the ANZSCO description for the position. It is not satisfied the position directs the development and implementation of sales strategies. It is of the view that the position has a role in implementing the sales strategies of the National Sales Manager. It accepts it builds relationships with prospective and current clients as a face to face sales representative of the business. While the Tribunal accepts the applicant needs an employee in the ACT branch to undertake some management, supervision and sales duties, it is not satisfied the position required is that of a Sales and Marketing Manager.
For these reasons the requirements of r.2.72(10)(f) are not met.
Given the above, as the Tribunal explained to the applicant at the hearing, it is not necessary to consider the other relevant requirements of r.2.72.
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.
Denise Connolly
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 1885

21 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness