F & Sons Transport Pty Ltd (Migration)

F & Sons Transport Pty Ltd (Migration) [2018] AATA 4035 (20 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  F & Sons Transport Pty Ltd
CASE NUMBER:  1618028
DIBP REFERENCE(S):  BCC2016/1800840
MEMBER:Denise Connolly
DATE:20 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 20 August 2018 at 1:10pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – genuine position – reduction on business turnover – main client closed business – performs some duties in position description – small business – duties not consistent with nominated occupation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 245AR
Migration Regulations 1994 (Cth), rr 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 October 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 20 May 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 r.2.72(10)(f) because the delegate was not satisfied the position associated with the nominated occupation is genuine.
Mr Afraz Mohammed appeared before the Tribunal, on behalf of the applicant, on 20 August 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The applicant is a transport company with its own fleet. It claims to need a Customer Service Manager (ANZSCO 149212) to be responsible for managing the relationships between the organisation and its clients. In a written submission provided with the nomination application the applicant indicates that the nominee, Mr Sandeep Singh, had been working for the business in July 2015 when he was offered the full-time position. The position description provided indicates that the business needs the position to communicate directly with clients, create analysis reports on customer service satisfaction, conduct post sales calls, create plans and strategies to increase customer service levels, analyse customer service, create customer satisfaction reports and deal with complaint resolution processes. The applicant provided various advertisements for similar positions indicating the salary is typically in the range of $50,000-$60,000. Also provided was a statement that the applicant had offered the nominee a base salary of $55,000 in superannuation determined by researching advertised market rates, payscale reports and the nominee skills and qualifications. The nominee holds an Advanced Diploma of Management, a Diploma of Management and certificates in Business and Frontline Management and has three years’ experience in customer service. The applicant provided photographs of the fleet, an organisational chart and a statement that the business employs no equivalent worker. The applicant provided a copy of the position’s duties dated 20 May 2016 and a copy of the employment contract dated 19 May 2016 recording a base salary of $55,000 plus superannuation. The organisational chart indicates that the business employs the nominee as a customer service manager. There is also an operations manager who is also a temporary resident, an administrative support officer who is an Australian citizen and 14 Australian citizen drivers.
In a written submission provided with the application the applicant set out a range of duties to be undertaken by the position. These included communicating with clients regarding their satisfaction levels, visiting customer sites and holding meetings with clients, producing reports on customer service satisfaction, making random client calls regarding deliveries and satisfaction, developing plans and strategies to improve customer service, addressing service inefficiencies and responding to client complaints, communicating with staff and training staff in customer service, designing customer service reviews and programs, determining customer service requirements, identifying and making improvements, planning and implementing after-sales service, preparing and completing action plans and providing feedback to team members. It is asserted that the position is essential for the business to maintain the customer service management and keep up with its large growth.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied the position associated with the nominated occupation is genuine. The delegate formed the view that the tasks of a customer service manager as described in ANZSCO appear to be high-level duties responsible for customer service management of organisations large enough to require such a function. The delegate noted that the applicant had not provided any substantiated evidence in support of its claimed business expansion or increased client base. In the absence of independently verifiable information the delegate was not satisfied that the business needed a customer service manager to ensure that it maintains good customer service, image and reputation as claimed in its written statement. She noted there was no team delivering customer services and formed the view that there was no evidence before her to demonstrate that the nominee managed, motivated and develop staff focusing specifically on customer service. She was not satisfied that the proposed tasks the nominee would undertake aligned substantially with the tasks of the nominated occupation.
The applicant provided further evidence to the Tribunal including the Certification form -paying for visa sponsorship, certifying it had not engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR (1). The Tribunal has also seen evidence from the Department’s electronic records confirming that the applicant is an approved standard business sponsor until 7 July 2021.
In February 2018 the Tribunal wrote to the applicant inviting it to provide information demonstrating the relevant requirements of r.2.72 are met at the time of decision. This included an invitation to provide information about the applicant’s current organisational structure and where the nominated position sits in relation to that structure, the roles and duties of the nominated position and how they correspond to the nominated occupation’s description in ANZSCO, information about the base rate of pay and terms and conditions of employment, and information about the nominee.
The applicant provided further submissions in relation to requirements of r.2.72. Included in these submissions is a new contract with the nominee dated 22 February 2018 recording a base salary of $65,000 plus superannuation. The applicant has provided BAS indicating a drop in sales since 2016. The sales incomes are recorded as follows:
a.January to March 2016 - $323,946
b.April to June 2016 - $339,594
c.July to September 2016 - $360,593
d.October to December 2016 - $366,204
e.January to March 2017 - $220,889
f.No BAS was provided for April 2017 to June 2017
g.July to September 2017 - $246,118
h.October to December 2017 - $294,473.
The applicant provided another position description which includes about 27 different responsibilities relating to customer service, developing and designing customer service reviews and programs, identifying and making recommendations for improvements, planning and implementing after-sales service, preparing action plans, communicating with staff, customers and management.
Before the hearing the applicant provided samples of the nominee’s payslips indicating he is being paid the base salary $65,000.
At the hearing the Tribunal explained that the applicant must meet all of the relevant requirements of r.2.72 before the nomination can be approved. The following is a summary of the oral evidence provided.
The Tribunal raised with the applicant its concern about the business’ turnover having reduced from 2016 to 2017. The applicant acknowledged that this was the case. He indicated that his business’ main client, Orrcon Steel, closed down in December 2017 and it had been reducing its business from July 2017. The applicant used to have 12 trucks but he sold five when he lost the Orrcon business. He used to have 13 drivers but he now has six.
The Tribunal asked the applicant, the owner of the business, what he does in the business. He indicated that he does some mechanical work and he sometimes drives. He claimed that he needs the nominee to perform the other duties of the business. The Tribunal asked why he cannot do those duties himself, given the business is now quite small. He indicated that he has to look after his five-year-old son because his wife has eczema. He acknowledged that his son will go to school next year and this will give him more time. Also his wife does some administrative work for the business, working about 15 to 20 hours per week doing the payslips and banking. The Tribunal noted the applicant formally had an operations manager. The applicant indicated he had sponsored the former operations manager for a SC 457 visa. However he no longer works for the applicant because when he lost the Orrcon work he could not afford to pay him. The Tribunal raised its concern that this might suggest the business cannot afford to pay the nominee as per the contract. The applicant indicated the operations manager also left because he only wanted to work with Orrcon.
The Tribunal asked the applicant about the business’ current client base. He indicated that most of his work comes from subcontracting for a large transport company, ITS Transport. He indicated ITS has its own operations manager and probably a customer service manager. the applicant has about four other smaller clients.
The Tribunal explained that it may be concerned that, given its size and nature, the applicant’s business does not need its own Customer Service Manager. The applicant indicated that he needs the nominee because he has the relationships with his customers. He also tries to get new customers. The Tribunal asked if the nominee is currently working in the position required. The applicant confirmed that the nominee is currently employed in the nominated position performing the duties required of the position. The Tribunal asked the applicant to describe all of the duties required of the position. The applicant indicated that the position looks after the invoicing. The nominee also talks to the customers on the telephone and visits sites to see how the drivers will handle certain situations. He checks oversized loads and looks at the freight. He talks to the customer about how the freight will be picked up and transported. He spends about two or three days a week visiting sites, sometimes giving customers quotes. He also talks to the customer about the timeframes and arrangements for pickups and deliveries. The Tribunal asked if there was anything else that the business required of the position. He indicated that the nominee also allocates jobs to drivers. ITS sends the nominee a message and then the nominee allocates the job to the driver. ITS calls the nominee directly and the nominee messages the drivers. The applicant acknowledged that he needs the nominee to undertake logistics and sales duties. The Tribunal asked if there was anything else that the business needed of the position. He indicated that the position will also do some banking and pick up cheques from customers.
The Tribunal raised its concern with the applicant that the written submissions regarding the various duties of the position are quite different to the duties described in his oral evidence. The applicant told the Tribunal that the agent wrote the position descriptions. He indicated that the agent sent the latest position description to him about a month ago. He read the responsibilities outlined in the document Position Description (provided to the Tribunal in response to the s.359(2) invitation) and thought that the nominee only did about five things described in the document (which lists about 27 different responsibilities). The applicant confirmed that the only duties performed in the position are those relating to direct customer service and communicating with the drivers. He indicated the position might also deal with complaints however they are usually about small issues such as a late delivery.
The applicant acknowledged that the nominee has been a truck driver for the business in the past. He used to drive on weekdays and weekends. He last drove for the business in about February 2018 because one of his drivers had left. When the nominee does this work he drives as a subcontractor and he is paid using his ABN.
The Tribunal discussed with the applicant the ANZSCO description for the nominated occupation. It raised the concern that the applicant’s oral evidence regarding the position description is different to the ANZSCO description and it may form the view that, while the business may need an employee, it does not need a Customer Service Manager. The applicant confirmed that the nominee who is working in the position needed is doing the duties he described in his oral evidence. He confirmed that he did not write the position descriptions; they were written by the agent. He acknowledged that his business is not a big company. The Tribunal indicated that on the basis of his oral evidence it may find the business does not need a Customer Service Manager. The applicant indicated that he understood. He had no other evidence to give.
The Tribunal has considered the ANZSCO description for the nominated occupation. While it is not bound by this description it finds it a useful tool in considering the nature and level of complexity of tasks typically undertaken by the nominated occupation. The nominated occupation falls in Unit Group 1492 which states in part 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.
Skill Level: 2
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This does not mean that the business does not require an employee to undertake certain duties. However the Tribunal must consider whether the business genuinely needs a Customer Service Manager.
On the basis of the applicant’s oral evidence at the hearing the Tribunal finds that the applicant runs a transport business which currently has seven trucks and employs six drivers. It accepts that the nominee has driven trucks for the applicant in the past but that he is now employed in the required position undertaking the duties described below, for which he is now paid a base salary of $65,000.
The applicant’s agent has provided to the Department and the Tribunal various written descriptions of the required responsibilities and duties of the position. However, as discussed with the applicant at the hearing, the written descriptions are somewhat different to the oral evidence given about the needs for the position. The applicant explained that the agent had prepared the written descriptions. He confirmed that his business needs the position to perform the duties that he described orally at the hearing. On the basis of the applicant’s oral evidence the Tribunal is not satisfied that the written descriptions for the position are reliable, except to the extent that they overlap with the applicant’s oral evidence.
On the basis of the applicant’s oral evidence the business requires the position to undertake the following duties. The position maintains direct contact with the customers and tries to get new customers. The position talks to the customers on the telephone and visits sites to see how the drivers will handle certain situations. The position checks oversized loads and the freight. The position discusses with the customer how the freight will be picked up and transported, timeframes, pickups and deliveries. The position spends about two or three days a week visiting sites, sometimes giving customers quotes. The position looks after the invoicing and does some banking and cheque collection. It also allocates jobs to drivers, having communicated directly with ITS, the business’ main customer for whom the business subcontracts drivers. In summary the business needs the position to undertake administrative, logistics and sales duties.
Having considered the ANZSCO description for the nominated occupation the Tribunal is not satisfied the position required by the applicant is that of a Customer Service Manager. It is not satisfied that the nominated occupation is one which has regular direct contact with customers. It has formed the view that the nominated occupation is a more strategic role which plans, administers and reviews customer services. In the Tribunal's view the nominated occupation role focuses on business' policies, programs and procedures concerning customer relations, rather than having direct customer contact itself. The Tribunal notes that the position required by the business is one which will liaise directly with clients regarding freight and logistics. It notes it will deal with invoices and some banking. The Tribunal has formed the view that this suggests the position required by the business has logistics, administrative and sales functions which, given the ANZSCO description, are not typical of a Customer Service Manager. On the evidence before it, the Tribunal is not satisfied the duties required of the applicant’s position are consistent with those of a Customer Service Manager.

On the basis of all of the evidence before it, the Tribunal is not satisfied that the position required by the applicant is that of a Customer Service Manager. In these circumstances it 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.
As a mandatory requirement has not been met the Tribunal has not considered whether the other relevant requirements in r.2.72 are met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Denise Connolly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2018] AATA 4035

20 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice