Fika Swedish Kitchen Pty Limited (Migration)

Fika Swedish Kitchen Pty Limited (Migration) [2021] AATA 2139 (13 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Fika Swedish Kitchen Pty Ltd
CASE NUMBER:  1823798
HOME AFFAIRS REFERENCE(S):          BCC2018/931332
MEMBER:K. Chapman
DATE:13 April 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 13 April 2021 at 12:17pm

CATCHWORDS
MIGRATION– Café or Restaurant Manager – applicant was approved as a standard business sponsor – no less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245AR, 359, 360
Migration Regulations 1994, rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2018 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, Fika Swedish Kitchen Pty Ltd, applied for approval on 27 February 2018. The applicant nominated Ms Adela Koubova (‘the nominee’) in the occupation of Café or Restaurant Manager, which is coded as number 141111 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The applicant operates three Swedish themed cafes, they are located in Sydney and Perth.
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 failed to satisfy r.2.72(10)(h), due to a lack of satisfaction that the applicant will engage the nominee only as an employee under a written contract of employment. On 16 August 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant subsequently provided a copy of the delegate’s decision to the Tribunal.
On 5 February 2021, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response, the Tribunal received material including, but not limited to, written submissions, menus, internet reviews, organisational chart, floor plans, standard business sponsorship approval, financial documentation, ASIC information, taxation records and a contract of employment pertaining to the nominee. The Tribunal notes that it had far greater relevant documentary evidence before it than was available to the delegate. All material received has been duly considered by the Tribunal.
The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
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 applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The 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.
The applicant lodged their application for nomination identifying the occupation of Café or Restaurant Manager (ANZSCO Code 141111) to be performed by Ms Adela Koubova, who is an applicant for a Subclass 457 visa. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form identifying a location in Sydney where the occupation will be carried out, was accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act. Further, the Tribunal is satisfied that the applicant is a standard business sponsor and the nomination identifies the six digit ANZSCO code for an occupation contained in a legislative instrument as an approved occupation for the purpose of the Subclass 457 visa.
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant submitted a copy of their Sponsorship Approval Notice confirming they are an approved standard business sponsor for the period 16 May 2018 to 16 May 2023.
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.
Having regard to the application for nomination and supporting documentary evidence, the Tribunal is satisfied that the applicant identified Ms Adela Koubova as the visa applicant who will work in the nominated occupation.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds that the applicant has identified the occupation of Café or Restaurant Manager (ANZSCO Code 141111) and a location in Sydney where it will be carried out.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal is satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence of adverse information contained in the Department file, or before the Tribunal, 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 18/004, 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 applicant nominated the nominee in the occupation of Café or Restaurant Manager (ANZSCO Code 141111). This occupation has attached to it the following inapplicability condition (or ‘caveat’) in accordance with instrument IMMI 18/004:
· Item 8 – the position is in a limited service restaurant.
The Instrument provides that a limited service restaurant includes ‘a fast food or takeaway food service’, ‘a fast casual restaurant’, ‘a drinking establishment that offers only a limited food service’, ‘a limited service café, including a coffee shop or mall café’, and ‘a limited service pizza restaurant.’ The Tribunal notes that if the position of the nominee is in a limited service restaurant, then the applicant is precluded from successful nomination by operation of the Instrument. Accordingly, a relevant consideration in the present matter is whether or not the applicant operates a limited service restaurant?
The Tribunal notes that Departmental policy makes reference to the assessment of whether a limited service restaurant is in operation[1]. Additionally, the Tribunal notes that Departmental policy requires an individual assessment of a business operation to determine its characterisation and provides various factors that may point to a business being a limited service restaurant or not. It is well settled that the Tribunal is not bound by Departmental policy, but should pay it due regard unless there are cogent reasons for departure.[2] In the present matter, no such reasons are apparent to the Tribunal. Accordingly, the Tribunal has assessed the applicant’s business operations carefully, and in doing so has duly considered Departmental policy, to determine whether they do, or do not, operate a limited service restaurant.
[1] Procedures Advice Manual 3 (PAM3): [Div 2.11 – Div 2.17] Temporary Work (Skilled) visa (subclass 457) – nominations, Section 4.8.1.4 Additional advice on hospitality positions and caveats.
[2] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The applicant submitted a significant amount of persuasive documentary evidence in support of its contention that it operates three full service restaurants. The submitted organisational chart, internet reviews, menu, position description, genuine position statement and floor plan point to the applicant operating full service restaurants. Furthermore, the Tribunal has viewed contemporary open source social media platforms that demonstrate the full service nature of the applicant’s operations. Additionally, the submitted financial and taxation records buttress the conclusion that the applicant’s operations are of a full service nature.
The submitted employment contract dated 12 February 2021, position description, genuine position statement, organisational chart and financial records indicate that the nominee will perform the majority of the tasks of a full time Café or Restaurant Manager as defined in the ANZSCO. Of note, the growth of the applicant’s operations, to now include a third café in Perth in addition to its two Sydney cafés, demonstrates the financial viability of the business and the necessity to engage a full time Café or Restaurant Manager.
Following careful consideration of the evidence, the Tribunal is satisfied that the nominated position is not in a limited service restaurant. Therefore, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition (or ‘caveat’).
Further, the Tribunal is satisfied that the nominated occupation is duly listed in instrument IMMI 18/004 and is applicable to the nominee, who will be employed as a full time Café or Restaurant Manager.
For the above reasons, the Tribunal is satisfied that the nominated occupation is not affected by an inapplicability condition, the requirements of r.2.72(10)(aa) are met and 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).
The documentary evidence before the Tribunal points to the nominee being employed as the only Café or Restaurant Manager at the nominated location by the applicant. Such evidence includes the organisational chart and the submitted financial records. Accordingly, the Tribunal is satisfied that no other person performs equivalent work at the same location to the nominee.
The nominee’s terms and conditions of employment are evidenced in her most recent employment contract dated 12 February 2021, which indicates she receives a base annual salary of $61,000. The Tribunal observes that this salary is consistent with the available market salary information for the occupation of Café or Restaurant Manager (ANZSCO Code 141111).
Following careful consideration of the evidence, the Tribunal finds 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 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, which specifies the relevant amount as $53,900.00.
Following careful consideration of the evidence, the Tribunal is satisfied that the base rate of pay of the nominee is equal to that which would be provided to an Australian citizen or Australian permanent resident employee performing equivalent work at the same location. As the base rate of pay of the nominee is $61,000 per annum, it is greater than the current TSMIT. The Tribunal is therefore satisfied that r.2.72(10)(cc) is 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 relevant instrument;
·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 the relevant instrument.
The applicant lawfully operates a business within Australia and the Tribunal is satisfied that it truthfully made the necessary certifications in the application for nomination.
For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
Following careful consideration of the evidence, the Tribunal is satisfied that the nominee will perform the role of a full time Café or Restaurant Manager (ANZSCO Code 141111) as defined in ANZSCO and that she will not perform a lower level occupation. Further, the Tribunal is satisfied that the nominee’s position is consistent with the size and scope of the applicant’s business, and that she is legitimately employed to fill a position that cannot be filled from the domestic labour market. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Café or Restaurant Manager (ANZSCO Code 141111) is genuine.
Therefore, 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 relevant instrument.
The applicant submitted a copy of the most recent employment contract dated 12 February 2021 with respect to the nominee and the Tribunal is satisfied that she will be employed pursuant to it.
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 the applicant, these must have been met.
The applicant is not a party to a work agreement, and for this reason 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.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.

In this matter, the nominated occupation is Café or Restaurant Manager (ANZSCO Code 141111). This occupation is classified as Skill Level 2 in ANZSCO, with such occupations being specified for the purposes of the occupational exemptions in s.140GBC(4)(b): IMMI 13/137. The relevant occupation description in ANZSCO provides that generally the minimum required qualification for the position is a Diploma, or in substitute at least three years of relevant experience. The Tribunal is satisfied the nominee possesses the necessary qualifications and experience for the nominated occupation. Therefore, the skill and occupational exemption in s.140GBC(3) is satisfied. Additionally, for the sake of completeness, the Tribunal is satisfied that the applicant genuinely conducted a bona fide recruitment process in order to employ the nominee.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Accordingly, 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.
K. Chapman
Member

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

[2021] AATA 2139

13 April 2021

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Immigration

Administrative Law

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Judicial Review

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Procedural Fairness

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