ENTI FINANCIAL PTY LTD (Migration)

ENTI FINANCIAL PTY LTD (Migration) [2018] AATA 2426 (31 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ENTI FINANCIAL PTY LTD
CASE NUMBER:  1617003
DIBP REFERENCE(S):  BCC2016/1308294
MEMBER:Alan McMurran
DATE:31 May 2018
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 31 May 2018 at 1:09pm

CATCHWORDS
Migration – Standard business sponsor nomination – Web Designer - Whether the nomination relates to a “genuine position” – Whether the nomination was lodged to fill a genuine skill shortage – Where sponsor previously attempted to fill the position locally – Significant portion of the sponsor’s business based online – Where position is of genuine benefit to the sponsor – Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 140E, 140GB, 140GBA, 245AR
Migration Regulations 1994 (Cth), rr 1.03, 2.72(10)(f), 2.73, Schedule 2
CASES
Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30
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 27 September 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 30 March 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72 (3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(10) (f) of the regulations because the applicant had not provided sufficient evidence in support of “genuine position” and the delegate was satisfied that the nomination was not lodged to fill a genuine skill shortage.
The applicant appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s sole director, Hui (Rita) Zhang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent.
Background
The applicant is a standard business sponsor by approval dating from 21 March 2016 and expiring on 21 March 2021. The applicant carries on business in Sydney from a retail shop in George Street. The business also sells products directly overseas (to China) by virtue of a wholesale operation conducted entirely on the Internet. The products are as set out in the application and include household chemist supplies and healthcare products.
The company has been trading since 2013. Its early retail operation, according to the director, was unsuccessful as very few people entered the shop. The applicant sought to develop an online trading platform for selling product which it commenced in about late 2015. That has proved significantly more effective than the retail outlet.
The applicant has sought to renew the application for the nomination of Mr Zhang. At the hearing, the director said that when lodging this application for the further nomination, she did not pay close attention to the material provided in support and effectively produced what had been given to the Department in the first nomination application (which had been successful). As noted by the delegate in the decision, the applicant referred to “Reasons of the new position”, when in fact the applicant sought to refer rather to the new application, not position.
The application was brought in March 2016, at which time the director stated the applicant already had an Internet web platform which it had operated since late 2015. It is unfortunate the applicant did not make the details clear to the Department when submitting the application and which it could have done with the evidence now supplied to the Tribunal for the hearing.
The director said the nominee applied for a visa which was ultimately refused, but during which period while the application was being processed, the nomination approval expired. The nomination is valid only for a period of 12 months after the day on which the nomination is approved and had therefore expired on 27 January 2016.
The director stated at the hearing, and the Tribunal is satisfied that the retail operation of the applicant is very small and does not trade profitably from the George Street premises. The Tribunal is satisfied that if the applicant conducted only the retail shop, the occupation of web designer neither exists nor would be relevant to that business, and the Department decision would need to be affirmed.
The director stated that in order to create a suitable online web platform, it was necessary to employ a full-time web designer (ANZSCO 232414). As referred to above, the applicant made a successful nomination application for the position of Web Designer, which was approved by the Department on 27 January 2015. The nominee was Xian Zhang, the director’s elder brother.
The Tribunal explained to the applicant at the hearing that this review was consideration only of the nomination application, and whether the position associated with the nominated occupation is genuine, and not the visa application by the nominee which would have to be dealt with separately by the Department. The director understood that if the nomination is successful, the nominee must still apply for approval of a visa for the nominated occupation.
The Tribunal has carefully considered all of the evidence most recently presented and in answer to a letter from the Tribunal dated 21 November 2017, inviting the applicant to provide information. The applicant has responded by providing further information for the Tribunal to consider.
The Tribunal has had regard to the Department’s file BCC 2016/1308294, the Tribunal’s file and the additional evidence filed at the hearing, together with the oral evidence presented by the director. Much time was taken up at the hearing with a discussion about the role of web designer, and whether the role exists in the applicant’s business and whether it really is the occupation associated with the position. It became clear during the discussion with the director and as referred to below, that the applicant depends heavily upon its web design for the success of its current business, particularly the wholesale enterprise and related contracts.
The Tribunal has now had the advantage of hearing from the director personally and reviewing the additional materials provided which includes current financials, a statement from the director, examples of the web site as developed since 2015 by the nominee and evidence of the prior outsourcing of the role of web design and advertising for the position of web designer.
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 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.
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal finds that the applicant is nominating an occupation under s.140 GB (1) (b): r.2.73 (1A) (a), being Web Designer (ANZSCO 232414). The applicant identifies in the nomination a proposed applicant for a subclass 457 Visa, Xian Zhang, as the person who will work in the occupation as required by 2.73 (1A) (b).
The nomination was made using the approved form and fee as required by r.2.73 (2), (3), (5) & (9).The applicant has identified the nominee as Xian Zhang in the nomination and in accordance with r.2.73 (4)/(4A) and r.2.72 (5).The applicant has provided the certification that the nominee has not engaged in conduct that constitutes a contravention of s.245 AR (1) of the Act, and as required by r.2.73 (4B).
The nomination includes the location at which the occupation will be carried out and the 6 digit ANZSCO code 232414, the applicant being a standard business sponsor.
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.
A standard business sponsor is defined in regulation 1.03 as a person who is an approved sponsor in relation to the standard business sponsor class by the Minister, under subsection 140E (1) of the Act. Approved sponsor is relevantly defined in section 5 (1) of the act as a person who has been approved as a sponsor and the sponsorship approval has not been cancelled or ceased to have effect, or is a non-ministerial party to a work agreement.
On the basis of the information available to it, the Tribunal finds that the applicant was approved as a standard business sponsor for a period commencing on 21 March 2016 and ending on 21 March 2021 and that status remains in effect at the time of decision.
For these reasons the requirements of r.2.72 (4) 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.
On the basis of the information provided in the nomination form, the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation as the visa applicant and that he is an applicant for a subclass 457 visa, given that he applied for a subclass 457 visa on 30 March 2016.
For these reasons 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. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in IMMI 15/028 in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
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 instrument IMMI 15/092 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 applicable instrument made for regulation 2.72(10)(aa) at the time of nomination was IMMI 15/092, which includes the occupation of ‘Web Designer’ (ANZSCO Code 232414).
On the basis of the information set out in the nomination form, the Tribunal is satisfied that the applicant provided the relevant 6 digit ANZSCO code of 232414, and specified the location of the nominee for the position at an address in Sydney, New South Wales.
For these reasons the requirements of r.2.72 (8A) 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.
The Tribunal finds that there is no information before it to demonstrate that the applicant has engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR (1) of the Act and that the applicant has certified accordingly.
For these reasons the requirements of r.2.72 (8B) 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.
Specifically ‘adverse information’ is defined in subregulation 2.57(3) for these purposes to mean any adverse information relevant to a person’s suitability as an approved sponsor and includes information that the person (the applicant) or another person associated with the applicant, has, in relation to a Commonwealth, State or Territory law of a type described in subregulation 2.57(3)(b):
·Been found guilty by a Court of an offence; or
·Has to the satisfaction of a ‘competent authority’ (as defined in regulation 2.57) acted in contravention of such a law, or has been subjected to an administrative action for possible contravention by such authority; or
·Is subject to disciplinary action or legal proceedings in relation to an alleged contravention of such law.
It also includes information that the applicant, or a person associated with the applicant has become insolvent within the meaning of the Bankruptcy Act 1966 and the Corporations Act 2001. The conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous 3 years.
The Tribunal finds that there is no adverse information of the type described above known to the Department or it about either the applicant or an ‘associated person’ before it.
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 instrument IMMI 15/092,for the occupation of Web Designer, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument.
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).
As indicated above, the Tribunal has found that the applicant is a Standard Business Sponsor. The relevant instrument is IMMI 15/092, which specifies the occupation of ‘Web Designer’ (ANZSCO Code 232414). Having considered the tasks and duties listed on the form and in the position description and as referred to in the findings below, the Tribunal accepts that the nominated occupation corresponds to the occupation described in ANZSCO.
For these reasons the requirements of r.2.72 (10)(aa) are met.
The Tribunal further finds that there is no requirement in the instrument for the nomination to be supported by a specified organisation and for these reasons the requirements of r.2.72(10)(b) are not applicable.
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 IMMI13/028 r.2.72(10)(AB).The current amount specified in the instrument is $53,900.
The Tribunal finds on the evidence before it is contained in the employment contract with the nominee that the annual earnings of the nominee will include an annual base salary of $97,000 per annum. The Tribunal finds that the nominee’s earnings are no less favourable than those for the relevant Australian equivalent and there is no substantial contrary evidence before the Tribunal that the terms and conditions of employment for the nominee are less favourable than for an equivalent Australian employee.
For these reasons the requirements of r.2.72 (10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 r.2.72(10AB).
Accordingly, the Tribunal must also determine whether the base rate of pay under the terms and conditions of employment that are or would be provided to the equivalent Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold specified by the Minister in writing. The temporary skilled migration income threshold is $53,900.00.
Based on the evidence before it, and having regard to its earlier findings, the Tribunal finds that the base rate of pay of $97,000 is greater than the temporary skilled migration income threshold of $53,900.00.
For these reasons the requirements of r.2.72 (10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72 (10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 15/092;
·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 IMMI 13/067;
·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 IMMI 13/067 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 15/092.
Based on information provided by the applicant in relation to the nomination application form, the Tribunal is satisfied that the position includes a significant majority of the tasks of set out in ANZSCO for a ‘Web Designer’ (ANZSCO Code 232414).
For these reasons the requirements of r.2.72 (10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
In Cargo First Pty Ltd v MIBP [2015] FCCA 2091 the Federal Circuit Court examined the operation of cl 2.72(10)(f) and expressed the relevant test at [30] as follows:
What is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation.
This decision was upheld on appeal in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30, and the construction of r. 2.72(10)(f) at first instance was endorsed at [36].
The approach then to determining whether the position is genuine under r. 2.72(10)(f), or in the words of the court in Cargo First, determining whether the position really is what it purports to be, requires the Tribunal to undertake a qualitative analysis of the duties and tasks the nominated employee actually discharges (or is to discharge) in the nominated position, and to compare that to the occupation described in ANZSCO. The necessary qualitative analysis requires more than just examining whether the duties and tasks the employee discharges include the majority of those referred to in ANZSCO.
The starting point for the Tribunal is the tasks set out in the relevant ANZSCO classification. The relevant ANZSCO classification is 232414 Web Designer. The tasks of a web designer include the following:
·determining the objectives and constraints of the design brief by consulting with clients and stakeholders
·undertaking research and analysing functional communication requirements
·formulating design concepts for the subject to be communicated
·preparing sketches, diagrams, illustrations and layouts to communicate design concepts
·negotiating design solutions with clients, management, sales and production staff
·selecting, specifying or recommending functional and aesthetic materials and media for publication, delivery or display
·supervising or carrying out production in the chosen media
·may archive information for future client use.
·Plans, designs, develops and prepares information for Internet publication with particular emphasis on the user interface, ease of navigation and location of information using text, pictures, animation, sound, colours, layout and data sources to deliver information tailored to an intended audience and purpose
The Tribunal spent considerable time at the hearing discussing the above tasks and proposed occupation of the nominee. The director was asked a number of questions about the work actually performed by the nominee. She said that the nominee does not need to work in the shop or the retail premises, and usually works in front of a computer at home. She said that she also lives in the same premises as the nominee, and can monitor his output and completion of tasks, which she supervises.
The director said that in the event the online business continues to expand, then eventually the applicant may engage a shop manager and other shop assistants to boost the performance of the retail outlet. In the meantime however the director said the focus of the business is on its Internet sales and performance as determined by the success of its online marketing.
She said the nominee is principally responsible for the development of the website, and has been helping her since inception in 2013,and his role includes posting photographs on the website of new products as well as existing products, ordering them visually in a structured way, and attaching information about the products including pricing. She said that the nominee as the web designer selects photographs and photo shops them for the website. She said products and pricing change regularly, and a daily task for the nominee is to adjust the products on the web page to modify pricing, and add and remove photographs of products. She said he also maintains the website and computer system and corrects any errors affecting access to the website. She said his role includes making sure the computer system operates perfectly. The director stated that on occasions the website will crash and the nominee is obliged to repair the site and ensure it continues to operate.
The director said that without the website, the applicant has no marketing or other sales presence. She said as a result of the current web design implemented entirely by the nominee, the applicant now exports Australian chemist and health products to China, as a wholesaler of healthcare products. She said that the retail operation conducted from the shop premises is extremely small and of no value to the business, which is now almost entirely web based. The applicant said that she currently pays the nominee a salary being the equivalent of $1198 per fortnight (approximately $30,000 per annum). The director explained that the nominee was on a student visa and limited to working 20 hours per week. The director stated that if the nominee is ultimately successful in obtaining a visa, she will pay him as contracted the equivalent of $97,000 per annum, when he is able to work full-time.
The Tribunal asked the director to comment on whether the salary was exorbitant. The director said the nominee had developed four websites since 2014:
· –sales.com.au
·>
The director said that the principal website, Ian’s Health Lounge, now generates approximately $800,000 in sales. She said the nominee is continuously upgrading and working on the web design, as web-sales based products are very competitive. She said the applicant had been successful breaking into the China market thanks principally to its web site. She felt the salary was appropriate given the sales performance of the applicant and its success due to the nominee’s IT skills and input to the web design. The web design and maintenance was fundamental to the applicant’s financial success and marketing presence.
The director was asked about the nominee’s qualifications and said he had a bachelor degree in IT from China. She said that the nominee had come to Australia in 2013 as a student where he was initially studying to improve his English. She said the nominee’s principal job was to manage the website, continually update its design so that it was attractive and develop an e-commerce Web product for the applicant, with a visual presence through photographs of products and a customer interface. The design was also “user friendly” to encourage ordering and the exchange of information.
The applicant said that the marketing on the web was extremely competitive and that she did not have the skills herself to develop and promote the website. She said initially in 2014, the applicant had attempted to locate a successful third-party web designer who could organise and build a web platform. She said she paid $2500 for a web design which took three months and began as chemist-sales.com. She said that experiment in web design failed and generated little or no income. She said she had been unable to successfully outsource the design since that time and utilised her brother’s skills because she thought he had the right qualifications. She had questioned him about web design concepts and his ability to assist her to promote the business. The applicant said that the agreed salary for $97,000 was affordable for the applicant and that her parents were investors in the business and would assist her with raising capital, including ensuring the salary of the nominee could be paid.
The Tribunal asked a number of questions about who might best perform the work as a web designer, other than the nominee. The director responded that she had been dissatisfied with her experience engaging third parties, and which had been unsuccessful. She said the business had flourished since her brother had taken up the web design projects. It was put to the applicant to comment upon the proposition that the position was not genuine, and designed merely to facilitate a migration outcome for her brother. The director denied this was the case and stated that she would not have employed him if he did not have the necessary qualifications and skills. She further stated that the current success of the business was evidence of his ability in performing the role of web designer.
The Tribunal finds that after discussing the matter at length with the director, that the nominee performs a majority of the tasks as outlined in the ANZSCO for the role of web designer. The nominee undertakes research and analyses communication requirements, including computer maintenance, formulates design concepts, and prepares outlines and illustrations of web design and content. The nominee is also responsible for detailing and documenting the designs and implementation and has been assisting the applicant since arriving in Australia in 2013.
The Tribunal finds that in accordance with the tasks as described by the director, the nominee performs the majority of tasks associated with the role and occupation of web designer and that the position is genuine in accordance with the meaning and intent of the Regulation and as described in the ANZSCO guide.
For these reasons the requirements of r.2.72 (10)(f) are met .
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a current instrument. There is no current instrument specifying the nominated occupation.
The applicant has provided a copy of a written contract of employment, some of the terms and conditions of which are described above. For these reasons the requirements of r.2.72 (10)(h) 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), (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. For these reasons the requirements of subregulations 2.72(11) and (12) are not applicable to the present matter.
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. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
S. 140GBC (2) sets out that an approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140 GBA if the nominated position requires either a relevant bachelor degree or higher qualification, other than a protected qualification, or five years or more of relevant experience, other than protected experience, and the nominated occupation is specified for the purposes of the exemption under a legislative instrument.
“Protected experience” is defined for the purposes of S.140 GBC to mean experience in the field of engineering (including shipping engineering) or nursing.
The nominated occupation of web designer 232414 in ANZSCO specifies skill level I meaning commensurate with a bachelor degree or higher qualification, or at least five years of relevant experience, which may substitute for the formal qualification. The relevant instrument IMMI 13/137 specifies for the purpose of s. 140 GBC of the Act all occupations that are classified in the ANZSCO as skill level I. This includes the occupation of web designer ANZSCO 232414.
The Tribunal finds therefore that the nominee for the occupation has a requirement for a bachelor degree or higher qualification or five years or more of relevant experience in order to meet the prescribed exemption.
The Tribunal finds on the available evidence found in the Department’s file, the Tribunal’s file and presented orally at hearing that the nominee has a bachelor degree and has been performing the occupation of web designer with the relevant experience for a minimum period of five years since 2013. For these reasons, the applicant as the approved sponsor and nominator falls within the exemption from the requirements otherwise necessary in relation to labour market testing as prescribed in section 140 GBA.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
For the reasons given above, 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.
Alan McMurran
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 2426

31 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Appeal