Estate Agents Pty Ltd (Migration)

Estate Agents Pty Ltd (Migration) [2019] AATA 4908 (4 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Estate Agents Pty Ltd
CASE NUMBER:  1701149
HOME AFFAIRS REFERENCE(S):           BCC2016/2808593
MEMBER:K. Chapman
DATE:4 January 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 04 January 2019 at 2:24pm
CATCHWORDS
MIGRATION – employer’s nomination of position – genuine position – inapplicability provisions – job description, tasks and salary – lower-level tasks – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 140GB, 359(2), 359AA
Migration Regulations 1994 (Cth), r 2.72(10)(f)
CASE
Cargo First Pty Ltd v MIBP [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 and Border Protection on 12 January 2017 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, Estate Agents Pty Ltd (also ‘the nominator’), applied for approval on 24 August 2016. The applicant nominated Ms Fathima Rizan (‘the nominee’) in the occupation of Customer Service Manager. 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. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) due to a lack of satisfaction that the position associated with the nominated occupation of Customer Service Manager is genuine. On 23 January 2017, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.
On 29 August 2018, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response, on 12 September 2018, the Tribunal received material including, but not limited to, Letters of Support, Customer Service procedures guide, financial records, ASIC records, Standard Business Sponsorship Approval Notice, an employment contract, an IELTS result and an organisational chart. All material received prior to the review hearing has been duly considered by the Tribunal.
The applicant, through its Director Mr Adam Loadsman, appeared before the Tribunal on 23 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rizan (the nominee) and Mr Mohamed Rizan Abdul Razak (the husband of the nominee).
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 applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nominated person in the nomination application is Ms Fathima Rizan. She is nominated pursuant to s.140GB of the Act on the basis that she will work in the occupation of Customer Service Manager. Accordingly, the Tribunal is satisfied that the applicable provision in this case is r.2.72 as in force immediately before 18 March 2018.
A key consideration in the present matter is whether the applicant meets the requirements of r.2.72(10)(f).
Position must be genuine
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 applicant nominated the occupation of Customer Service Manager, which is coded as number 149212 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The ANZSCO provides an indicative list of tasks that a person fulfilling the role of a Customer Services Manager would usually perform. These are referred to in the Departmental delegate’s nomination refusal decision, a copy of which was provided by the applicant to the Tribunal.
In determining whether the position which the applicant seeks to fill can genuinely be described as a Customer Service Manager role, the Tribunal has had regard to the description and tasks of the occupation as set out in the ANZSCO.
The nominated occupation of Customer Service Manager is in the Unit Group 1492 ‘Call or Contact Centre and Customer Service Manager’. The ANZSCO sets out the indicative skill level and tasks for a Customer Service Manager as follows:
UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS

CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
…
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre

Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager
…

149212 CUSTOMER SERVICE MANAGER

Alternative Titles:
Client Service Manager
Service Manager

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
The applicant, Estate Agents Pty Ltd, is a company involved in the holiday accommodation business in the Gold Coast region. A submitted letter dated 31 August 2018 from Mr Adam Loadsman, director of the applicant company, indicates that Ms Fathima Rizan has been employed as a full time Customer Service Manager since 3 January 2017. This correspondence outlines Ms Rizan’s duties and responsibilities as follows:
·Provide quality customer service and achieve revenue, cost saving and profit targets;
·Training the customer service team such as admin staff, housekeeping team and giving advice regarding customer complaints;
·Coaching and developing the Customer service teams to successfully deliver their role objectives, grow their skills and capability and strengthen staff engagement;
·Focusing on the appearance and cleanliness of establishments where people sleep, eat and enjoy their Gold Coast Holidays experience with us;
·Ensure the financial achievements of the company are maintained expanded;
·Ayesha is responsible for making sure the needs of customers are met;
·Ensuring top quality customer service;
·Developing and updating customer service procedures and policies;
·Authorising refunds or other forms of compensation to customers;
·Handling complex complaints and enquiries;
·Analysing important management information to ensure customers are being properly treated;
·Assisting in the recruitment, development and appraisal of staff (including housekeeping team);
·Remaining up to date with ever changing customer service requirements;
·Required to attend meeting with senior managements on a regular basis.
The applicant provided various research information for similar positions indicating the annual salary is typically in the range of $53,712 to $81,112, with an average salary for such positions being $65,330 per annum. The applicant has most recently offered Ms Rizan an annual salary of $65,000. A copy of an employment contract dated 31 August 2018 was also submitted to the Tribunal by the applicant demonstrating the aforementioned level of remuneration. A submitted organisational chart (at page 39 of the Tribunal file) indicates that Ms Rizan reports to the Managing Director, Mr Adam Loadsman. Below Ms Rizan’s position on the organisational chart are the Sales Administrator and Housekeeping Manager. According to that chart the latter manages nine housekeepers and one painter (who is the husband of the nominee).
Additionally, in a letter of 11 September 2018 from Mr Loadsman, it is submitted that the caveat (also known as an inapplicability condition, see IMMI17/060 which is referred to in the s.359(2) correspondence of 29 August 2018) does not apply to Ms Rizan’s nominated occupation as the position is not based in a front-line retail setting, it does not predominantly involve direct client transactional interaction on a regular basis, the company has annual turnover of more than $1 million and the nominee’s base salary is no less than $65,000.
The oral evidence of Mr Adam Loadsman, Director of the applicant company, given by and on behalf of the applicant, may be summarised as follows. The applicant believes the decision to refuse the nomination is wrong because it requires the services of a Customer Service Manager and since the nominee has performed the role turnover is up by 45 percent. The applicant outlined that the business of the company concerns the provision of holiday accommodation in the Gold Coast region. Customers book accommodation with the applicant, primarily through online means, and then they are assigned to properties which the applicant manages on behalf of their owners. Mr Loadsman is a qualified real estate agent and described the applicant’s business to have some similarities with property management in the real estate field.
Mr Loadsman explained that he engages the property owners as clients. Once customers book accommodation in the properties then the housekeepers ensure they are in a proper condition for hire. The nominee is said to field calls from customers if they have housekeeping issues and then she directs the housekeepers to attend to the necessary tasks. According to Mr Loadsman, the nominee has been employed by the applicant since January 2017 as the Customer Service Manager. Mr Loadsman knew the husband of the nominee, Mr Mohamed Rizan Abdul Razak, when he worked as a painter with another accommodation business. Mr Razak advised that his wife was looking for work and a business mentor of Mr Loadsman encouraged him to employ the nominee so that he might focus on more strategic areas of the business. Mr Loadsman advised that prior to employing the nominee he advertised for the role but could not find any people who were the right fit for the business other than the nominee.
Mr Loadsman explained that the applicant employs a remotely based administrator who fields calls during the evening and another employee who runs the ‘portals’ for inventory. He initially advised that they both report to him as the Director. Mr Loadsman indicated that the nominee examines why customers might not be satisfied and she manages the housekeepers, who in his view are customer service persons. Mr Loadsman explained that the housekeepers are independent contractors utilising Australian Business Numbers. He added that the nominee’s husband is now employed by the applicant as a full time painter and his visa is linked to that of his wife (he is the secondary applicant on her Subclass 457 visa application).
Mr Loadsman agreed that the nominee has direct client interaction when customers ring the applicant’s 1800 telephone number to report problems. The nominee then assigns the housekeepers to attend to those problems, for example by cleaning their accommodation. Mr Loadsman indicated that the nominee devised customer service policies (including the submitted Customer Service Procedure Guide and Guest Satisfaction Surveys) but agreed they are very basic. Mr Loadsman explained that the nominee has responsibility for engaging the housekeeping staff, managing them and developing them. The Tribunal raised the contents of the submitted organisational chart with Mr Loadsman and he agreed that the applicant company utilises independent contractors, rather than employees, to perform housekeeping services due to the convenience of this arrangement.
The Tribunal raised with Mr Loadsman that the basic nature of the customer service policies devised by the nominee and her management of independent contractor housekeepers might tend to suggest that the nominee is not performing the higher level tasks of a Customer Service Manager as defined in ANZSCO, inviting his comment. He responded that he is happy with the service rendered by the nominee and that he utilises contractors for convenience as he previously outlined. Mr Loadsman reiterated that the services of the nominee are required by the applicant.
The Tribunal also took oral evidence from the nominee, Ms Rizan. It may be summarised as follows. She described her duties and responsibilities in the position to be focused on providing efficient customer service for the guests of the applicant. She has a Bachelor in Accounting and Business Management from the Central Queensland University with some human resources subjects included. She advised that the applicant’s staffing comprises Mr Loadsman as Managing Director and the two administrative roles previously outlined. She described the housekeepers as providing the foundation of customer service and added that her husband is employed as a painter. The nominee advised that she manages the two employed administrative staff in addition to ten housekeepers. She speaks with guests to follow up on any complaints and attempts to ensure they are happy so that they will book again with the applicant. The nominee described devising the Customer Satisfaction Survey. She is happy working for the applicant.
The Tribunal also took oral evidence from the nominee’s husband, Mr Razak. It may be summarised as follows. He described being employed as a painter by the applicant but as he is on site mostly and his wife is in the office he was unsure of how she interacts with the housekeepers. He noted that his wife handles complaints made by guests. Mr Razak also explained that his wife tasks him with jobs to perform for the applicant.
Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:
·the annual salary of the nominee, Ms Rizan, was referred to in an earlier letter from Mr Loadsman dated 7 November 2016 and in an earlier employment contract of the same date as $55,000 and in the most recent documents and employment contract as $65,000 per annum. The Tribunal raised that the caveat (or inapplicability condition) relating to the occupation of Customer Service Manager contained in instrument IMMI17/060 requires an annual salary of $65,000 and that the most recent remuneration figure might tend to suggest the applicant was seeking to achieve a migration outcome for the nominee by adjusting his remuneration figure to satisfy the caveat rather than his position associated with the nominated occupation being genuine.
The Tribunal indicated that this information is relevant to the review as it tends to suggest that the position associated with the nominated occupation is not genuine. The Tribunal indicated that if it were to rely upon the s.359AA information it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that they understood why the information is relevant to the review. The applicant was offered an adjournment before commenting on or responding to each piece of information, however they chose to respond immediately. The applicant, through Mr Loadsman, indicated that at the time of employing the nominee he would not have offered a salary higher than $55,000 per annum, however in order to ‘meet the criteria’ he was advised to increase the amount to $65,000. Given he was satisfied with the performance of the nominee he agreed to do so and is happy with that decision. The Tribunal has very carefully considered the applicant’s response to the s.359AA information.
Prior to the conclusion of the review hearing, the applicant through Mr Loadsman confirmed that there was no further evidence to provide concerning the review application.
CONCLUSION
The Tribunal has carefully considered the relevant evidence before it, but is not satisfied that the position which the applicant seeks to fill is in fact a Customer Service Manager role as described in ANZSCO. The Tribunal acknowledges that the applicant has experienced growth in its operations and that there is a need to fill a genuine vacancy within the business. However, as indicated, the position that the applicant seeks to fill is not, in the view of the Tribunal, a Customer Service Manager role.
The role the applicant seeks to fill involves many lower level customer service and administrative tasks including fielding telephone complaints then directing independent contractors to perform housekeeping tasks (largely involving cleaning and servicing of accommodation), in addition to instructing her husband to perform painting jobs. Whilst the Tribunal accepts that the nominee has devised some customer services policy documentation, it is at a most basic level of complexity. The nominee also follows up with guests to determine if they are satisfied with their stay and obtains such information largely from a basic customer satisfaction survey. The Tribunal prefers the initial oral evidence of Mr Loadsman concerning his management of the two administrative employees to that of the nominee in this regard. Accordingly, the Tribunal finds that the only employee the nominee manages is her husband and that she tasks independent contractors to perform housekeeping duties. The size and complexion of the applicant’s business point to the nominee having a limited managerial role in the sense contemplated by ANZSCO with respect to the role of a Customer Service Manager.
On balance, following careful consideration of the oral and documentary evidence (including the submitted letters in support of the review application), the Tribunal does not accept that the nominee’s duties are commensurate with the ANZSCO employment tasks of a Customer Service Manager. The Tribunal is therefore not satisfied that the position can genuinely be classified as a Customer Service Manager. Accordingly, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. For these reasons, the requirements of r.2.72(10)(f) are not met.
For the reasons outlined 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.
K. Chapman
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.

[2019] AATA 4908

4 January 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction