DWL Tiling Pty Ltd (Migration)

DWL Tiling Pty Ltd (Migration) [2021] AATA 4892 (19 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  DWL Tiling Pty Ltd
CASE NUMBER:  1837241
HOME AFFAIRS REFERENCE(S):          BCC2018/952877
MEMBER:Katie Malyon
DATE:19 November 2021
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 19 November 2021 at 1:25 pm
CATCHWORDS
MIGRATION–nomination – Wall and Floor Tiler – no Australian citizen or permanent resident performing equivalent work at the same location –genuine need to employ a paid employee to work in the position– no adverse information – no less favourable terms and condition of employment – labour market testing requirements in s.140GBA not applicable – decision under review set aside
LEGISLATION
Fair Work Act 2009 (Cth)
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Mora v MIBP [2018] FCA 1819
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 Home Affairs on 30 November 2018 to refuse to approve the nomination made by DWL Tiling Pty Ltd (the Company) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval on 28 February 2018. 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 of the Act.
The delegate decided not to approve the Company’s nomination of the occupation of Wall and Floor Tiler ANZSCO 333411 for the nominee and existing employee, Korean national Woong Jun Kim, on the basis that the Company did not provide a copy of Mr Kim’s written contract of employment as required by r.2.72(10)(h)(i) of the Regulations. A copy of the delegate’s decision was provided to the Tribunal together with a copy of the signed contract of dated 19 February 2018. However, the Company’s then representative did not bring to the Tribunal’s attention that the review application, together with documentation in the Department’s file, was now fully-documented and decision-ready.
Subsequently, on 2 November 2020 the Tribunal was advised that the Company was represented in relation to the review by its newly appointed registered migration agent, John Yoon of Global Legal Consulting Pty Ltd.
Background
On 5 August 2021, the Tribunal wrote to the Company pursuant to s.359(2) of the Act inviting it to provide updated and current information about its business as well as the nominated occupation and thereby address all relevant requirements of both the Act and the Regulations. In response, the Company completed the Tribunal’s online Request for Business Nomination Information and provided the Tribunal with an extensive range of documentation.
Having reviewed the documentation provided in response to its s.359(2 letter, the Tribunal invited the Company to attend a hearing. It also requested the Company provide additional specified documentation to demonstrate that it meets all of the criteria for approval of the nomination. Some documentation was received prior to the hearing.
Hearing
The Company’s Director Daewon Lee and its Project Manager Yong Taek (Ted) Kim (hereinafter Ted Kim) appeared before the Tribunal on 17 November 2021 to give evidence and present arguments on behalf of the Company at a MS Teams video hearing. The Tribunal’s hearing was conducted as a combined hearing with the Tribunal’s review of the delegate’s refusal of the nominee Woong Jun Kim’s Subclass 457 visa application (Tribunal Case No. 1901615). The Tribunal found Mr Lee, Ted Kim and Woong Jun Kim (hereinafter Mr Kim or Woong Jun Kim) to be credible witnesses. The Tribunal’s hearing was conducted with the assistance of an interpreter in the Korean and English languages. On occasions, both Daewon Lee and Mr Kim responded to the Tribunal’s questions in English. The representative also attended the hearing.
By way of brief background, the Tribunal notes that the nominee Mr Kim has worked as a Floor and Wall Tiler with the Company since 4 May 2016 after arriving in Australia in January 2016. Initially, he worked with the Company in the capacity of a contractor with his own ABN. However, since 9 November 2020 he has been working as an employee as confirmed by the Cbus Superannuation Payment summary provided and his revised CV provided to the Tribunal.
During the course of the hearing, the Tribunal brought to the representative’s attention his the need to comply with the AAT President’s COVID-19 Special Measure Practice Direction – Migration and Refugee Division which contains information and directions about current procedures at the Tribunal. The Tribunal noted that a representative’s failure to comply with the Practice Direction may result in referral to the relevant regulatory authority. The representative acknowledged the Tribunal’s comments.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal acknowledges it has significantly more information than that which was available to the delegate.
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 applicant is an approved sponsor and meets the requirements in r.2.72 of the Regulations: s.140GB (2) of the Act. In addition, for nominations made from 23 November 2013, s.140GBA of the Act must be met.
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 of the Regulations.
The Tribunal has had regard to the material in the Department’s file and is satisfied that: the nomination was made using the approved form and was accompanied by the correct fee; the Company nominated an occupation under s.140GB(1)(b) of the Act and it identified, in the nomination, an applicant for a Subclass 457 visa as the person who will work in the occupation, namely, Woong Jun Kim; the Company identified the location where the nominee would carry out the occupation, namely from the Company’s office in Southport; and, it includes the name of the nominated occupation, in this case, Wall and Floor Tiler ANZSCO 333411. The Company’s nomination also contains the required certifications.
For these reasons the requirements of r.2.72(3) of the Regulations are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The Company was most recently approved as a standard business sponsor on 1 July 2021. As such, its approval ceases on 1 July 2026. Accordingly, the Tribunal is satisfied that the Company is a standard business sponsor and, for this reason, the requirements of r.2.72(4) of the Regulations are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
As noted above, the Company has identified in its nomination Woong Jun Kim, who is an applicant for the visa, to work in the nominated occupation. Accordingly, the requirements of r.2.72(5) of the Regulations are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
Since nominee Mr Kim is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), r.2.72(7A) and r.2.72(10)(g) of the Regulations do not apply in this case.
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 Company indicated the name of the occupation is Wall and Floor Tiler (ANZSCO 333411) and the location at which the occupation is to be carried out. The occupation will be carried out from the Company’s office in Southport and at various client sites.
For these reasons, the requirements of r.2.72(8A) of the Regulations are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act. This provision prohibits asking for or receiving a benefit in return for the occurrence of a sponsorship-related event.
Having reviewed the nomination lodged with the Department, the Tribunal is satisfied that the Company has made the requisite certification. Accordingly, the requirement in r.2.72(8B) of the Regulations is 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, the terms ‘adverse information’ and ‘associated with’ have the meaning given in r.1.13A and r.1.13B of the Regulations.
There is no evidence before the Tribunal to indicate that there is any ‘adverse information’ known to Immigration, either about the Company or a person ‘associated with’ the Company. On the contrary, the Company’s most recent standard business sponsorship application was approved on 1 July 2021 for 5 years.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(9) of the Regulations are met.
Specified occupation
Subclause 2.72(10)(aa) of the Regulations requires that the nominated occupation and its 6- digit code correspond to an occupation and 6-digit code specified in the applicable instrument, IMMI 18/004, of 15 January 2018. 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) of the Regulations.
The Tribunal is satisfied the nominated occupation of Wall and Floor Tiler ANZSCO 333411 is included in IMMI 18/004. The instrument does not require that the nomination be supported in writing by a specified organisation.
For these reasons, the requirements of r.2.72(10)(aa) of the Regulations are met and the requirements in r.2.72(10)(b) of the Regulations are not applicable.
Terms and conditions of employment, base rate of pay
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A) of the Regulations. The word ‘earnings’ is defined in r.2.57A of the Regulations and includes: the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and, the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by 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 IMMI 09/113: r.2.72(10AA) of the Regulations. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in IMMI 13/028 which is currently set at $250,000: r.2.72(10AB) of the Regulations.
Further, r.2.72(10)(cc) of the Regulations requires that the base rate of pay under the terms and conditions of employment must be greater than the Temporary Skilled Migration Income Threshold (TSMIT) specified by the Minister in an instrument (although this may be waived if the circumstances in r.2.72(10A) of the Regulations exist). The current TSMIT for the purposes of r.2.72(10)(cc) of the Regulations is $53,900: IMMI 13/028.
The contract of employment made between the Company and the nominee Mr Kim dated 2 February 2018 lodged with the Tribunal at the time of lodgement of the review application on 19 December 2018 provides for a base salary of $55,000 per annum plus superannuation. Prior to the hearing, the Company’s representative provided a contract dated 18 August 2021 which provides for an annual salary of $59,500 plus superannuation. During the course of the hearing, the Tribunal drew to the Company’s attention the fact that, although cl.1.1 of the contract dated 18 August 2021 states it commences on grant of a Subclass 457 visa to Mr Kim, cl.18.1 of that contract states the agreement is subject to grant of a Subclass 482 visa to him. In the circumstances, the Tribunal invited the Company to provide a new contract of employment with consistent provisions referring to a Subclass 457 visa since this is the related visa that Mr Kim has applied for.
After hearing the hearing, the Company provided a new contract of employment made between the Company and Mr Kim dated 17 November 2021 which provides for a base salary of $59,500 plus superannuation (the Contract of Employment). As the nominee‘s proposed annual earnings are less than the specified threshold of $250,000, the Company is required to meet r.2.72(10)(c) of the Regulations.
The Company has advised that there are no Australian citizens or permanent residents performing equivalent work at the same location. Evidence of the Australian citizenship or visa status of employees has been provided to the Tribunal. At the time the nomination application was lodged with the Department, the Company’s then representative provided a submission noting that the Company referred to salary surveys and some job vacancy advertisements to determine the base salary for the position. The representative notes that remuneration surveys from PayScale and JobOutlook indicate salaries for Tilers are in the order of $52,000 per annum. Further, he notes that the Company had undertaken benchmarking of other local companies which confirms that salaries for Tilers range between $52,000 to $65,000 for a mid-level tiler.
In response to the Tribunal’s s.359(2) letter, the Company has provided updated information downloaded from PayScale confirming the salary offered to Tilers in south-east Queensland ranges from $43,000 – $91,000 per annum plus superannuation with the median salary being $59,494 per annum.
Having regard to the level of experience of the nominee Mr Kim as well as the terms and conditions of employment as set out in the Contract of Employment (including his proposed earnings of $59,500 per annum plus superannuation), the Tribunal is satisfied that the nominee’s terms and conditions of employment will be no less favourable than the terms and conditions of employment that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. For these reasons, the requirements of r.2.72(10)(c) of the Regulations are met.
As Mr Kim’s proposed annual salary of $59,500 (excluding superannuation) exceeds the current TSMIT of $53,900 per annum, the Tribunal finds that r.2.72(10)(cc) of the Regulations is also satisfied.
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) of the Regulations. These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument IMMI 18/004;
·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 relevant 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 IMMI 18/004.
The Tribunal is satisfied on the basis of the relevant certifications in the nomination application that the requirements of r.2.72(10)(e) of the Regulations are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The Tribunal is required to determine not only whether or not the position in question is genuine in the sense that the position exists, but also whether the position really is what it purports to be. In respect of the latter, the Courts have confirmed that the determination necessarily requires a qualitative analysis of the position by the decision maker (in this case, the Tribunal) and a comparison of that with the occupation which has been nominated by the proposed sponsor: see, for example, Cargo First Pty Ltd v MIBP [2016] FCA 30, Flick J at [34] and Mora v MIBP [2018] FCA 1819, Collier J at [40].
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal has had regard to the position description attached to the Contract of Employment and the Company’s organizational structure. It also had regard to the Company’s website as well as the signed Financial Reports, Company Tax Returns downloaded from the ATO’s website and Business Activity Statements provided to the Tribunal. The Company has consistently reported income in excess of $5 million per annum.
Project Manager Ted Kim told the Tribunal the Company currently has 10 projects that it is working on and this is double the number of projects that it had this time last year. Projects are based not only on the Gold Coast but also in Brisbane at Redcliffe and Sunnybank. It employs 5 Tilers who report to 3 supervisors. It also employs an Accountant as well as a Project Manager who supervises a team comprising an Interior Designer, a Contract Administrator and a Project Administrator. Both Daewon Lee and Ted Kim confirmed that, having been with the Company for more than 5 years and with the benefit of 3 years’ experience as a Tiler in Korea before arriving in Australia, the nominee Mr Kim is a highly valued employee who consistently meets and exceeds client expectations. Daewon Lee added that Mr Kim also speaks both Korean and English so is a good communicator not only with clients but also his colleagues.

Having regard to the nature, size and activities of the business, the tasks to be undertaken in the position and the nominee's background as a Tiler in Korea before arriving in Australia in January 2016, the Tribunal is satisfied on the totality of the evidence that the position of Wall and Floor Tiler, as identified in the nomination, is genuine.
For these reasons the requirements of r.2.72(10)(f) of the Regulations are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee 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. There is no current instrument relevant for this provision.
As noted above, the delegate decided not to approve the nomination on the basis that the Company did not meet r.2.72(10)(h)(i) of the Regulations because no written contract of employment was provided to the Department. However, the Tribunal has been provided with the Contract of Employment signed by both the Company and the nominee Mr Kim.
For these reasons, the requirements of r.2.72(10)(h) of the Regulations are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11) and r.2.72(12) of the Regulations.
As the Company is not a party to a work agreement, the requirements of r.2.72(11) and r.2.72(12) are not applicable.
Labour market testing
Section 140GBA of the Act requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or, in the alternative, the skill and occupational exemptions in s.140GBB – s.140GBC of the Act apply or, relevantly, 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.
The nominee Woong Jun Kim is a national of South Korea. Relevantly, Ministerial Instrument LIN 20/029 dated 28 January 2020 provides that the labour market testing condition is inconsistent with the Korea-Australia Free Trade Agreement for the purposes of s.140GBA(1)(c) of the Act.[1] In the circumstances, the Tribunal finds that the labour market testing requirements in s.140GBA of the Act are not applicable in this case.
[1] >
For the cumulative reasons given above, the Company meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Katie Malyon

Member
ATTACHMENT - Extracts from the Migration Regulations 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(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.
oOOo

[2021] AATA 4892

19 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal