FAST FACILITIES SERVICES PTY LTD (Migration)

FAST FACILITIES SERVICES PTY LTD (Migration) [2018] AATA 1406 (12 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  FAST FACILITIES SERVICES PTY LTD
CASE NUMBER:  1612909
DIBP REFERENCE(S):  BCC2016/407377
MEMBER:Denise Connolly
DATE:12 April 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 12 April 2018 at 5:18pm

CATCHWORDS
Migration – Employer Nomination – Nominated occupation – Corporate Services Manager – Organisational chart – Employment contract – Base rate of pay – Need for the position – Duties and tasks
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 245AR
Migration Regulations 1994, rr 1.13A, 1.13B, 2.57A, 2.72, 2.73, Schedule 2 cl 457.223
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 July 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 27 January 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.
Ms Diana Milena Rusinque Gomez appeared, on behalf of the applicant, before the Tribunal on 22 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mauro Pereira Carlos, the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review by its registered migration agent.
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 applicant is a strata and commercial cleaning service company which has been operating since April 2014. It serves strata management, businesses, local councils and private commercial offices in the Sydney area. At the time of application it had 24 ongoing sites and employed four full-time employees, six part-time employees and 13 contractors. The applicant has submitted that it needs a Business Manager and has nominated the occupation Corporate Services Manager (ANZSCO 132111). It identified the nominee as Mauro Pereira Carlos. It provided evidence that the nominee had an employment contract with the applicant, dated 8 July 2014, to receive a base salary of $65,000 per year plus superannuation in accordance with the legislation. The applicant provided evidence that the nominee was a Subclass 457 visa holder who had been the subject of a previous approved nomination for the same occupation. The applicant also provided a statutory declaration confirming that the nominee is a shareholder of the business. It is also submitted that the nominee is a member of the family unit of the General Manager and owner of the company, Ms Gomez. However they submit that the position has not been created to secure a migration outcome for the nominee. The company was founded in April 2014 while the owner was on a temporary visa and identified an opportunity in the market. Mr Pereira is Ms Gomez’s husband. It is asserted that she decided to hire her husband but there is nothing in the legislation that prevents the temporary visa holder starting a business and nominating a relative.
The position description provided with the application is as follows:
·participate in the overall management of the company
·participate in strategic and operational planning with the director
·provide high-level advice to the director regarding corporate services and lead the implementation
·provide leadership and implementation of risk management
·develop and manage budgets
·assist in setting up new contracts, pricing and quoting for new and additional contracted services
·support, train and develop area/site managers and cleaning staff
·develop and implement policies and procedures for all staff
·manage company’s resources including financial resources, staff and equipment
·prepare reports regarding company services and resources for director and accountants.
The applicant also provided evidence regarding current contracts and the business’ financial circumstances.
The delegate formed the view that the position associated with the nominated occupation, Corporate Services Manager, exists solely to facilitate the nominee’s stay in Australia rather than to fill a genuine vacancy or skills shortage. She was not satisfied that the evidence provided demonstrates that the nomination was lodged to fill a genuine skill shortage. She formed the view that the position associated with the nominated occupation was created to a facilitate migration outcome for the nominee. She was not satisfied r.2.72(10)(f) was met.
In response to a s.359(2) invitation the applicant provided to the Tribunal further information including the following:
·evidence that the applicant had a previous nomination application approved for the position Corporate Services Manager relating to the nominee.
·evidence that on 4 September 2014 the nominee was granted a one year Subclass 457 visa to be employed by the applicant in the nominated occupation on a base salary of $65,000 per year.
·References from clients indicating they have dealt directly with the nominee.
·Information about the services provided by the applicant and samples of service agreements.
·Information about the average salary in Australia for a Corporate Services Manager.
·BAS from the Australian Taxation Office (ATO) portal for the period January to March 2015, April to June 2015, July to September 2015, October to December 2015, January to March 2016, April to June 2016, July to September 2016, January to March 2017, April to June 2017, July to September 2017. The BAS demonstrate that the sales from January 2017 to June 2017 exceed $1 million.
·Financial report for the 2015 financial year recording wages and salary expenditure of $124,106.
·Financial report for the 2016 financial year recording wages and salary expenditure for field staff of $494,550.
·financial report for the 2017 financial year recording wages and salary expenditure of $228,694.
·payroll summary indicating gross payment to the nominee for the period 1 July 2017 to 1 December 2017 of $30,250.
·an organisational chart showing that the company director, Diana Rusinque, is the holder of a bridging visa and that there are five other managers including the nominee.
·Employment contract indicating a base salary of $65,000 per year and a letter dated 4 December 2017 indicating the position’s base salary will be increased to $80,000 per year excluding superannuation.
·Evidence that the applicant is an approved standard business sponsor until 2 October 2020.
·evidence from ABN Lookup confirming the applicant is an Australian private company.
·a written submission from the applicant’s representative.
The representative has advised that the business currently has 26 corporate and 18 individual clients. It provides services including strata and commercial cleaning, construction final cleaning, carpet steam cleaning, high water pressure wash, gardening services, strip and seal, window cleaning, carpark sweeping and washing. It has a workforce of eight employees and approximately 85 contractors. The 2017 recorded income was $1,494,230 with an operating profit of $37,070. The nominee’s base salary is now $80,000 plus superannuation. The representative acknowledges that the nominee is a relative of the director of the business however the sponsoring company has now been operating for over three years and it has an annual turnover of over $1 million, and employs eight staff, three of which are Australian permanent residents or citizens.
The representative provides a chart comparing the duties of the position with those described for the nominated occupation in ANZSCO. It is asserted that the Business Manager (the nominee) reports directly to the Director, closely liaises with all other “departments” and staff members especially the Compliance Manager HSEQ, Client Service Manager, Operations Manager, Operation Specialist, Accounting Manager and Area Managers/Supervisors. The representative provided a written description for each of those roles. It is asserted that the nominated position closely liaises with the operational units and is in charge of supporting them while controlling and coordinating the overall administration of the company. The role supports and manages administrative staff, analyses complex resource issues brought to him by the Operations Manager and Client Services Manager and engages in strategic planning in cooperation with the Director. The business’ growth has been attributed to the skill and experience of the nominee who has managed the company’s resources. It is asserted that there will be strong growth in the industry. The business also creates work for over 80 contractors. It does not employ any other Subclass 457 visa holders and in the past has only employed the current nominee as a 457 visa holder. Due to the nature of the business there are several temporary visa holders employed by the business however the company aims to employ more Australian citizens in the future. The proposed salary falls well within the market salary rate for the role. The nominee has been employed in the role on full-time basis since September 2014.
Prior to the hearing the applicant provided an updated financial statement for the period 1 July 2017 to March 2018 indicating total income of $1,482,125 and a net profit of $87,595. The wages and salaries expenditure in that period was $251,052 the applicant also provided samples of the nominee’s payslips indicating he is paid an hourly rate of $39.80 and as at 4 March 2018 he had been paid $54,450 YTD.
The ANZSCO description for the nominated occupation is as follows:
UNIT GROUP 1321 CORPORATE SERVICES MANAGERS

CORPORATE SERVICES MANAGERS plan, organise, direct, control and coordinate the overall administration of organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
oproviding high level administrative, strategic planning and operational support, research and advice to senior management on administrative matters such as staff management, financial planning, facility management and information services
odeveloping and managing the organisation's administrative, financial, physical and staff resources
odeveloping and implementing administrative, financial and operational procedural statements and guidelines for use by staff in the organisation
oanalysing complex resource management issues and initiatives that affect the organisation, and preparing associated reports, correspondence and submissions
oproviding information and support for the preparation of financial reports and budgets
oleading, managing and developing administrative staff to ensure smooth business operations and the provision of accurate and timely information
orepresenting the organisation in negotiations, and at conventions, seminars, public hearings and forums, and promoting existing and new programs and policies

Occupation:
132111 Corporate Services Manager

132111 CORPORATE SERVICES MANAGER

Alternative Titles:
Administration Manager
Business Services Manager

Plans, organises, directs, controls and coordinates the overall administration of an organisation.
Skill Level: 1
At the hearing the Tribunal discussed with the applicant and Mr Pereira the requirements of the law, the nature of the business and the needs of the position. The following is a summary of the evidence provided at the hearing.
The applicant explained that she is the only director of the company and held a Subclass 457 visa as a secondary visa applicant, the primary visa holder being the nominee. The business had a start-up nomination approved and she and the nominee were granted Subclass 457 visas which expired in September 2015. She holds 90% of the company shares and the nominee holds 10%.
The applicant indicated that while she makes most of the important decisions she is essentially advised by the nominee. He also has the power in the business to make general decisions. The nominee supervises the managers in the business. While she approves the business’ larger contracts (she indicated there is a contract worth about $50,000) she is guided by the nominee. The nominee also supervises and advises the staff. The Tribunal noted that the references provided from clients indicate that they deal mainly with the nominee.
The Tribunal asked the applicant about her and the nominee’s salaries. She was somewhat vague about this. Ultimately evidence was provided after the hearing indicating that her taxable income in the 2017 financial year was $63,395. The nominee’s taxable income on the 2017 financial year was $69,829 and in the 2016 financial year it was $72,497 (based on ATO Notices of Assessment). The applicant also provided bank statements demonstrating that salaries are paid from a joint business’ bank account into the nominee’s bank account.
The applicant indicated that the business employs a Compliance Manager who looks after employee safety and security at each site and ensures that government regulations are complied with. The business also employs a Client Service Manager who is in charge of dealing with clients, sometimes on a face-to-face basis, to ensure satisfaction with the work done. This manager resolves complaints. If a variation is needed to a contract the Client Service Manager informs the nominee through reports and the nominee negotiates contract variations. The business also employs an Operations Manager who is in charge of operations. This person also goes to every site to check that staff are working and that the machinery used is in a good state. The Operations Manager might also meet with contractors when needed, and also estimates the number of people/hours/equipment which will be needed for a given job. There is also an Operations Specialist who deals with the special works such as cleaning requiring certain machinery or water pressure tools. The business also employs an Accounts Manager and an Area manager and supervisor who work on bigger projects such as Optus Sydney. The supervisor is in charge of the number of staff ensuring punctuality and quality. At the moment the business has about 12 to 13 large contracts and 12 smaller contracts.
The Tribunal asked about the business’ need for the position. The applicant indicated that the business needs the position to develop and update policies and procedures to ensure high quality service. When asked about recent policies the nominee had worked on, she indicated that he developed a policy discounting new clients and he has worked on a policy regarding staff safety. The nominee is then in charge of disseminating this information to staff. He does this by sending letters and emails. He maintains a manual of procedures.
The applicant indicated the nominee also works in a team to implement new contracts. He works directly with the Operations Manager and the Compliance Manager insuring any safety issues are resolved. The nominee also makes decisions about which equipment needs to be used. He also does the budgeting. He has recently been working on a significant tender with North Sydney Council to clean and maintain a range of the Council’s facilities, including the North Sydney swimming pool and its parks. He has undertaken significant analysis for the preparation of the tender.
The applicant indicated that all the managers report to the nominee. He meets with them on a regular basis and has daily email and telephone contact. The nominee is in charge of the day-to-day running of the business, the development and implementation of policies and procedures, the development of the business’ budget, and he is in charge of training the managers. He also advises the applicant on the terms of any contracts the business takes on. He talks directly with clients and negotiates the terms of contracts. While she indicated she makes the important decisions she also admitted these decisions are made on the basis of the nominee’s advice.
The Tribunal asked about any negotiation of variation of contracts the nominee has undertaken recently. She indicated that he had recently negotiated to have additional tasks for a site added to a contract. He liaises with another manager to address this request.
The applicant indicated that the bulk of the nominee’s time is spent in the head office, however from time to time he will go out to deal with issues on site. The nominee deals directly with the business’ accountant. He attends to the business’ budget and accounts on a regular basis.
The Tribunal took oral evidence from the nominee Mr Pereira, who is the Director’s husband. He confirmed that he is currently working in the position. The business has recently decided that his base salary will be $80,000 per annum. He explained that he is the conduit between the director and the management team. He oversees management of the whole business. While he advises on all decisions, some decisions can only be made by his wife because she is the company director, in particular in relation to contractual issues. He deals with personnel management and issues arising with contractors. He manages the whole management team and makes most of the simple decisions. He oversees the operations of the business, coordinates its management, ensures compliance eg with OH&S requirements and deals with accounting and budgeting issues. He ensures that client services are as expected and of high quality.
Recently the nominee has been involved in a tender process, overseeing the tender for North Sydney Council’s parks and amenities. This is a significant contract which will result in business growth. He has organised the team to go to briefings however he is the company representative. He goes on site to oversee the technical specifications. The nominee may delegate to another manager to record all details and specifications and he uses that information to prepare tenders. Typically in a week he will deal with variations to current contracts, such as including window cleaning or carpets. He liaises with the other managers regarding these requests. He supervises the accounts manager regarding invoices, wages and tax payments. With respect to financial issues he advises the director on pricing and resources. He analyses different issues arising in contracts, advises the director on potential investments in equipment and hires personnel. He works on the development and maintenance of policies and procedures. He is trying to build a sustainable practice by using chemicals that have minimal impact on the environment. He also develops procedures to reduce the chance of damage and injury. His policies regarding the use of equipment and chemicals are site-specific. He works with the Compliance Manager on those policies. He also oversees the whole of the business’ operation, taking responsibility for the management team and dealings with clients and managing quality assurance. He deals with any issues where the staff may have an adverse impact on the client. He meets with the relevant manager regarding staffing issues.

The Tribunal went through the ANZSCO description with the nominee addressing the various tasks included for the nominated occupation. The nominee was able to describe his role in budgeting and forecasting for the next financial year. He indicated that he advises the director on strategic decisions to pursue the business’ target for the year. He is also involved in marketing, operations and making decisions about investment in machinery. He is always looking for opportunities to grow the business and advises the director on those issues. While his accounting assistant uses MYOB to prepare resources and make payments to contractors, he supervises this role. He recently researched the options for software to manage the various contracts in the business and purchased Building Link, a building management system.
The nominee participates in planning meetings to create opportunities and expand the business. He is the driving force behind the consideration of the best use of the business’ resources. The nominee makes decisions about whether there is a need to invest in more machinery, equipment or vehicles. He takes into account the financial forecasting and budgeting. The business has recently purchased another vehicle and now has four vehicles.
The nominee referred to his earlier evidence regarding the development and implementation of policies and procedures and also discussed his role in the development of administrative and operational procedures. With respect to analysis of complex resource management issues and initiatives, he referred to the preparation of the tender for the North Sydney Council contract. He described the processes he undertook to consider the various options available. For example the equipment used for high pressure cleaning ranges in value from $5000-$50,000. He advised the director on the decision as to which equipment purchase, taking into account what the business can afford. He also provides information for the preparation of financial reports and budgeting. He leads and manages the management team to ensure that they are working together. He delegates where tasks may overlap. He attends meetings with prospective clients such as North Sydney Council. He sometimes demonstrates or explains the services the business is able to provide to potential and existing clients. Recently he demonstrated to Cumberland Council the high-pressure treatment on tiles for their swimming Centre.
The nominee has a Bachelor of Business Administration. He emphasised that the business is genuine, pays tax and generates employment. It has been successful and he and the director would like to continue the business.
After the hearing the applicant provided to the Tribunal further evidence including the following:
·Evidence that the applicant was approved as a SBS until 2 October 2020.
·Evidence that Ms Gomez and Mr Pereira have two children, both born after Mr Pereira’s Subclass 457 visa ceased. (The Tribunal has confirmed using the Department’s electronic records that neither child has held a Subclass 457 visa).
·Evidence of market salary research and the nominee’s employment contract and amending letter showing he will now receive a base salary of $80,000.
·Evidence regarding the nominee’s Bachelor of Business Administration and his five year’s employment experience relevant to the nominated occupation.
·Company tax return for the 2017 financial year signed by the tax agent as having been lodged with the ATO on 30 August 2017 showing an annual turnover of $1,499,756.
·Ms Gomez and Mr Pereira’s notices of assessment for the 2015, 2016 and 2017 financial years.
·Bank statements showing transfers from the business account to the nominee for his wages.
·Examples of the company’s policies and procedures prepared by the nominee on worker’s responsibilities, quality, OH&S and WH&S and work method statements.
·Examples of strata cleaning plans, tender documents for North Sydney and Ryde Councils, and email communications between the nominee and Council representatives.
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.
On the basis of information on the Department’s file, the Tribunal is satisfied that the applicant identified Mauro Pereira Carlos as the proposed applicant for a Subclass 457 visa who will work in the nominated occupation of Corporate Services Manager (132111). The Tribunal is also satisfied that the application was made on the approved form which included the relevant certification regarding non contravention of s.245AR(1) of the Act. The Tribunal is also satisfied that the nomination includes the location (Gordon) at which the occupation will be employed.
The requirements of r.2.72(3) are therefore met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The Tribunal has checked the Department’s electronic records which confirm the applicant is approved as a standard business sponsor until 2 October 2020.
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.
The nomination identifies Mauro Pereira Carols as the person who will work in the nominated occupation. The requirements of r.2.72(5) are therefore 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 the relevant instrument 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).
The nominee was the holder of a Subclass 457 visa having been sponsored by the applicant to be employed in the nominated occupation. He was granted a Subclass 457 visa on 4 September 2014 and it ceased on 4 September 2015. His wife, Ms Gomez, was also granted a Subclass 457 visa as a member of his family. She is listed on the nomination application. The nominee has two children, both born since his Subclass 457 visa ceased. They have not been granted Subclass 457 visas and so do not need to be listed on the nomination application. For these reasons the requirements of r.2.72(6)(a) are met.
The nominee has provided to the Department evidence regarding his Bachelor of Administration awarded in 2004 and evidence regarding his relevant work experience. This information is on the nominee’s Departmental file for his visa application. He has also worked in the nominated occupation for the applicant business since 2014. The applicant has previously been granted a Subclass 457 visa to work in the nominated occupation. On the basis of this, and his oral evidence about the work he has done for the business, the Tribunal is satisfied the nominee has demonstrated that he has the skills necessary to perform the occupation. For these reasons the requirements of r.2.72(6)(b) are met.
In relation to the requirements PIC4006A(1)(c), there is no evidence before the Tribunal to indicate that the nominee’s Subclass 457 visa was granted following an undertaking regarding health requirements. For these reasons the requirements of r.2.72(7A) are not relevant in this case.
In relation to the English language requirement the nominee provided to the Department for the purposes of his first Subclass 457 visa application his IELTS test results for a test conducted on 12 April 2014 in which he scored 6.5 for listening, 6.5 for reading, 5.5 for writing and 6.0 for speaking, with an overall score of 6.0. The Tribunal has verified those results. That visa was granted on 4 September 2014, after the IELTS test was undertaken. There is a note on the Department’s file indicating the nominee was ‘Exempt’ but it’s not clear to the Tribunal whether this is correct – clearly he met the English language requirements on the basis of his IELTS test results. Also the nomination approval relating to the nominee’s first Subclass 457 visa application specifies a base rate of pay of $65,000. In these circumstances the Tribunal is not satisfied the nominee was an exempt applicant and the Tribunal finds the nominee did not meet cl.457.223(4)(6).
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination.
The Tribunal is satisfied that the applicant provided, as required, the name of the occupation and the corresponding 6-digit ANZSCO: Corporate Services Manager (132111). The applicant also provided the location at which the nominated occupation is to be carried out: Gordon NSW. While the position requires the nominee to work on-site from time to time, the Tribunal is satisfied the business is based in Gordon but the duties of the position will require the nominee to work at different locations from time to time.
The requirements of r.2.72(8A) are therefore 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 applicant has provided the required certification as part of the nomination. The requirements of r.2.72(8B) are therefore 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.
The Tribunal is not aware of any adverse information known to Immigration about the applicant or a person associated with the applicant.
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 17/060, 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).
The occupation Corporate Services Manager (132111) is specified in the relevant instrument IMMI 17/060. The Tribunal has considered the relevant instrument and the nominated occupation is subject to:
·Item 4, (a) the position has a nominated base salary of less than AUD80,000; and
(b) if the person is to be transferred to fill the position—the transfer is not an intra corporate transfer to which an international trade obligation applies.
·Item 20 - (a) the position is in a business that has an annual turnover of less than AUD1,000,000; and
(b) if the person is to be transferred to fill the position—the transfer is not an intra corporate transfer to which an international trade obligation applies.
Item 22 - (a) the position is in a business that has fewer than 5 employees; and
(b) if the person is to be transferred to fill the position—the transfer is not an intra corporate transfer to which an international trade obligation applies..
The Tribunal notes there is an employment contract indicating a base salary of $65,000 per year and a letter dated 4 December 2017 indicating the position’s base salary will be increased to AUD$80,000 per year excluding superannuation. On the basis of this letter the Tribunal is satisfied Item 4(a) does not apply. In any case Item 4(b) does not apply.
On the basis of the company tax return for the 2017 financial year the Tribunal is satisfied the annual turnover of the business is greater than AUD$1,000,000. The Tribunal is satisfied Item 20(a) does not apply.
There is no evidence before the Tribunal to suggest the nominee is to be transferred to fill the position and the transfer is not an intra corporate transfer to which an international trade obligation applies. It finds therefore that Item 22 is not relevant.
In these circumstances the Tribunal finds the nominated occupation is not affected by the inapplicability conditions. For these reasons the requirements of r.2.72(10)(aa) are met.
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 IMMI 13/028: r.2.72(10)(AB).
On the basis of the organisational chart provided to the Department and the oral evidence provided at the hearing the Tribunal is satisfied there are no Australian citizens or permanent residents performing equivalent work at the same location.
On the basis of the contract of employment dated 8 July 2014 and the letter dated 4 December 2017, the Tribunal the nominee will be paid a base salary of $80,000 per year, plus superannuation, to work a 38 hour week. The nominee is entitled to overtime compensation. The contract provides the requisite leave entitlements. The applicant has provided evidence from Payscale.com and job advertisements from Indeed.com indicating similar management positions attract salaries of between $70,000 to $100,000. The Tribunal is of the view the average salary varies to this extent because the level of responsibility will depend on the size and nature of the business. The applicant’s business, while generating income of over $1million, is relatively small. The nominee’s current base rate of pay falls within this range. Having regard to the method set out in the applicable instrument and all of this information the Tribunal is satisfied the nominee’s earnings 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 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).
The nominee’s annual earnings are not equal to or greater than the income threshold in IMMI 13/028 (i.e. $250,000), r.2.72(10AB) is therefore not applicable in this case.
The Tribunal is satisfied on the evidence before it that the annual earnings and base rate of pay for the Australian equivalent is greater than the current TSMIT of $53,900. 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 17/060;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.
The Tribunal is satisfied on the basis of the relevant certifications in the nomination application that 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.
The delegate was not satisfied the position associated with the nominated occupation is genuine. The Tribunal has had the opportunity to discuss with the applicant and the nominee the tasks and duties of the position. The nominee has been employed in the position now since 2014. In that time the business has grown to the extent that it now has a turnover of over $1million.

The Tribunal found the nominee’s oral evidence to be detailed and persuasive. It has also considered documentation provided to the Tribunal which relates to the position’s responsibilities in particular in relation to preparing tender documents and securing and maintaining contracts with reputable clients such as Optus and local councils. On the basis of the written material provided and the oral evidence at the hearing the Tribunal is satisfied the applicant needs the position to perform the duties described in the position description. The Tribunal is satisfied the position is crucial in advising the director about the business’ direction. It is satisfied the position contributes to the overall management of the company. It leads the strategic and operational planning and provides high level advice to the director regarding services, contracts and investments. It leads the management team, and works on financial control and budgets. It is critical in the preparation of tender documents and negotiating with current and potential clients. It provides training and staff support, works on policies and procedures and manages the company’s resources. It represents the business in external meetings and demonstrates equipment to current and prospective clients. Overall the Tribunal is satisfied the position plans, organises, directs, controls and coordinates the administration of the business. It is satisfied these duties are consistent with the duties and tasks described in the ANZSCO description for the occupation and relevant Unit Group.
Having regard to all of the written and oral evidence the Tribunal is satisfied the applicant genuinely needs a Corporate Services Manager to fulfil the duties described in the position description and at the hearing. It is therefore satisfied the position associated with the nominated occupation is genuine.
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 the instrument.
The applicant has provided a copy of a signed contract of employment dated 8 July 2014 and a letter dated 4 December 2017 amending the contract, in respect of the nominee. 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.
As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.
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.
In this case, the nomination is subject to the skill exemption as provided for in the relevant instrument as it is an occupation in skill level 1 and requires at least a bachelor degree qualification.
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.
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 1406

12 April 2018

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