FIVE ORIENTATIONS INVESTMENT HOLDING PTY LTD (Migration)

FIVE ORIENTATIONS INVESTMENT HOLDING PTY LTD (Migration) [2017] AATA 855 (31 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  FIVE ORIENTATIONS INVESTMENT HOLDING PTY LTD
CASE NUMBER:  1610435
DIBP REFERENCE(S):  BCC2016/407838
MEMBER:Stavros Georgiadis
DATE:31 May 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 31 May 2017 at 5:19pm

CATCHWORDS
Migration – Employer nomination – Subclass 457 (Employer Nomination Scheme) – Nominated occupation – Motel Manager – Nominated position not genuine

LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 140GBC
Migration Regulations 1994, r 1.13A, r 1.13B, r 2.72, r 2.73

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 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 applicant in this matter, Mr Bing Chen Li, is Director of the nominator, Five Orientations Investment Holding Pty Ltd. He and his spouse, Ms Qian Fan, are also the visa applicants for Subclass 457 Temporary Work (Skilled) visas in the related matter 1617814.
The delegate decided not to approve the nomination application by Five Orientations Investment Holding Pty Ltd on the basis that the applicant did not satisfy r. 2.72(10(f) of the Regulations as the delegate considered the position associated with the nominated occupation was not genuine and therefore the applicant could not satisfy the criteria for r.2.72(10).
Mr Bing Chen Li appeared before the Tribunal on 22 May 2017 to give evidence and present arguments in respect of both matters relating to the nomination and the 457 visa applications. The related matters 1610435 and 1617814 were heard together. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The applicant’s evidence and submissions are that Five Orientations Investment Holding Pty Ltd operates a motor inn business trading as Jacksons Motor Inn in South Australia. The business provides accommodation services in metropolitan Adelaide and is located at the inner south-eastern suburb of Glen Osmond, South Australia. The business has 67 rooms and employs 10 persons in total (including Mr Li) most of whom are part-time staff or casuals. According to Mr Li there are four ‘front of house’ reception staff and five casual and part time cleaners.
Mr Li told the Tribunal that he is the sole Director of the company since two other Directors were removed in July 2015 as they were not permitted to work in Australia. Mr Li did not advise of the change within 28 days of the change of Directors at the time and notification from Australian Border Force and enquiries were subsequently made. This is discussed further below. Mr Li told the Tribunal that he has been a Director from the company’s inception on 18 August 2014. At that time Mr Li purchased the established business. This is consistent with the ASIC business name registration of 22 September 2014.
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.
Five Orientations Investment Holding Pty Ltd had received a notification from Australian Border Force that ‘The sponsor failed to notify the department of the change of directors within the specified timeframe of 28 working days of the event occurring.’ However, the correspondence from Australian Border Force stated that this monitoring event would not be counted as adverse information and is ‘not a formal warning.’ The applicant’s submission of 30 May 2017 is that it has fully understood the gravity of this matter and has been, and will continue to, diligently and carefully satisfy any and all visa and nomination conditions and requirements.
The Tribunal accepts that this oversight does not amount to adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For this reason the Tribunal draws no adverse inference regarding the application relating to this point.
Specified occupation
The applicant identified in the nomination is Mr Bingchen Li as the proposed applicant for the 457 visa, who is proposed to work in the nominated occupation of Motel Manager. The Tribunal has had regard to the duties of that occupation classification as set out in ANZSCO 141311 and has compared and contrasted the duties for the role with the duties set out in ANZSCO 431411 for the occupation of Hotel Services Manager.
The duties for Motel Manager (ANZSCO 141311) are listed as follows:
Tasks Include:
odirecting and overseeing reservation, reception, room service and housekeeping activities
osupervising security arrangements, and garden and property maintenance
oplanning and supervising bar, restaurant, function and conference activities
oobserving liquor, gaming, and other laws and regulations
oassessing and reviewing customer satisfaction
ooverseeing accounting and purchasing activities
oensuring compliance with occupational health and safety regulations
omay provide guests with local tourism information, and arrange tours and transportation.
The duties for Hotel Services Manager (ANZSCO 431411) are listed as follows:
Tasks Include:
odetermining work requirements and allocating duties to Commercial Housekeepers, Luggage Porters and Doorpersons
oconferring with managers to coordinate activities with other organisational units
omaintaining attendance records and rosters
oexplaining and enforcing safety regulations
ooverseeing the work of the unit and suggesting improvements and changes
oconferring with workers to resolve grievances
omay perform front office and hotel reception duties
The Tribunal accepts the applicant’s oral evidence that he oversees the operations of the business as he is responsible for the day-to-day operations of the motor inn comprising of a small team of 10 persons. His written submissions of 28 March 2017 set out that he undertakes the following duties.
1. Managing and maintaining all year or seasonal lodging facilities.
2. Observing and monitoring workers’ performance to make sure that company rules and procedures are being followed.
3. Conferring and cooperating with other department managers to coordinate hotel activities, such as weddings.
4. Answering questions about hotel policies and services and resolving customers’ complaints.
5. Arranging telephone answering service, mail delivery, and answers customers questions about area.
6. Inspecting hotel for cleanliness and appearance.
7. Coordinating front-office duties and resolve problems.
8. Assigning duties to workers and schedule shifts.
9. Planning and organizing accommodation, catering and other hotel services.
10. Promoting and marketing the business.
11. Managing budgets and financial plans as well as controlling expenditure.
12. Maintaining statistical and financial records.
13. Setting and achieving sales and profit targets.
At the hearing, the Tribunal carefully explored the nature and mix of tasks undertaken by the applicant in his role which he has been performing in managing the business. Mr Li told the Tribunal that he checks to make sure that staff are doing their job properly, deals with complaints from customers, deals with staff complaints, ensures workplace and safety regulations are adhered to (including those required by the local council), takes care of rosters, marketing / promotions, administration/budget and such like. When asked about the proportion of time spent on these duties, Mr Li told the Tribunal that he works an average of 38 hours per week and up to 40 hours per week in the summer period when it is busier. He responded that he spends 23 hours per week on the front reception counter overseeing the reception staff and also dealing with customers and an average of 10 hours per week checking the cleaning/housekeeping staff to ensure rooms have been prepared adequately. The Tribunal accepts the applicant’s oral evidence in this regard and places weight on the evidence that a large proportion of the applicant’s time (some 33 hours per week) is spent on managing front counter / reception staff and welcoming guests, and supervising cleaners / housekeepers in their respective roles.
Mr Li told the Tribunal when asked, that the business does not operate a restaurant or bar and, in fact, holds no liquor licence of its own. It also has no gaming facilities and any functions (such as weddings) are arranged at different venues with the applicant providing accommodation services only. In respect of restaurant and bar facilities on premises, the applicant told the Tribunal that these facilities are operated by a different business “totally separate” to the applicant under a sublease arrangement with the landlord of the premises. The Tribunal accepts the applicant’s evidence that the applicant’s business provides accommodation facilities only.
In light of the above, the Tribunal reflected to the applicant at the hearing that the nature and scope of the duties appeared more akin to those of a Hotel Services Manager (ANZSCO 431411) [which is at a lower skill level] rather that the nominated occupation of Motel Manager (ANZSCO 141311) and invited the applicant to comment.
The Tribunal allowed additional time to respond to this issue raised at the hearing and received further written submissions and material under cover email of 30 May 2017 in reply. On this point the applicant submits in part: “... All tasks mentioned in ANZSCO code 141311, hotel and motel manager, are covered in Mr Bingchen Li’s duties description. It can also be clearly concluded that Mr Li’s job duties has a strong focus on organizing and controlling the operations of the motel to provide guest accommodation, meals and other services, controlling finance and promoting the business . Please specifically refer to duty No. 1, 2, 5, 8, 9, 10, 11, 12 and 13. … However, the duties of hotel service manager are mainly on supervising and coordinating the activities of hotel service workers and the duties of general manager put more of an emphasis on the day-to-day operations and planning major functions through departmental managers and subordinate executives. These are not the best description of the main duties of Mr Bingchen Li, as they are not covered the important parts such as controlling finance and promoting business in his job description.”
The Tribunal acknowledges a degree of overlap between the role of the two aforementioned occupations having had the benefit of carefully questioning and hearing from the applicant regarding the duties undertaken. The Tribunal notes that the written submissions of 30 May 2017 in response to this issue raised at hearing refer to ‘meals and other services’ and also ‘planning major functions through departmental managers and subordinate executives.’ The applicant’s oral evidence however, is that meals and major functions (such as weddings) are not offered at the applicant’s premises and therefore, the Tribunal is not persuaded by the above submissions as it accepts the applicant’s oral evidence on these points provided at the hearing.
Having regard to the nature and mix of duties undertaken in the role, the limited range of services offered and considering the small size of the organisation of 9 other part-time and casual staff, the Tribunal considers that the position aligns with the occupation of Hotel Services Manager (ANZSCO 431411) rather than the nominated occupation of Motel Manager (ANZSCO 141311). In coming to this view the Tribunal places weight on the evidence that the applicant spends a considerable proportion of his time and skill (an average of 33 hours out of 38-40 hours per week) in supervising reception personnel and housekeepers / cleaners together with receiving or welcoming guests, rather than on the higher level organisational management roles of the business relating to marketing, budgeting, catering and other hotel services, such as those that may require a liquor licence or involve gaming. In this regard, the Tribunal places weight on the applicant’s oral evidence in particular, that the business provides accommodation facilities only.
The Tribunal therefore concludes that the nominated occupation and 6-digit code does not correspond to the occupation and 6-digit code specified in the relevant instrument.
The Tribunal has considered that on 18 April 2017 the Minister announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a subclass 457 visa application.
Sub clause 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 the relevant instrument IMMI 17/040. 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 new instrument, IMMI 17/040, took effect from 19 April 2017. It amends the former IMMI 16/059 by replacing the Skilled Occupation List (SOL) and Consolidated Sponsored Occupation List (CSOL) in Schedule 1 and Schedule 2 of that instrument. In the Subclass 457 visa program, the changes affects live applications such that no visas can be granted and no nominations can be approved in respect of any of the removed occupations from 19 April 2017, and new caveats to certain occupations apply from this date. This affects current Subclass 457 visa applications as well as applications for approval of nominations for Subclass 457 visas, regardless of the date of application.
The Tribunal notes that the instrument subjects the nominated occupation of Motel Manager (ANZSCO 141311) to a caveat which excludes its use for positions which predominately have responsibility for managing hotel or motel staff, as the Tribunal has found is the case here.
The applicant’s further written submissions of 30 May 2017 also set out: “As specified by legislative instrument, all ANZSCO skill level 1 and 2 occupations are currently exempt from the [Labour Market Testing] LMT requirement unless the qualification or experience is protected.” The submission is that “the indicative Skill Level of UNIT GROUP 1413 HOTEL AND MOTEL MANAGERS is skill level 2 and therefore exempt for the Labour Market testing.” However, the Tribunal’s finding above that the nominated position matches the occupation of Hotel Services Manager (ANZSCO 431411) means it is ANZSCO Skill Level 3 (rather than Skill Level 2 of Motel Manager (ANZSCO 141311)) and therefore, the exemption under s140GBC does not apply.
Accordingly, the applicant’s nomination application no longer meets a requirement in r.2.72(10)(aa) of the Regulations for the nominated occupation and its 6-digit code. The applicant is also unable to meet certification requirements for the purposes of various matters in writing under r.2.72(10)(e) - including that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO.
For these reasons the requirements of r.2.72(10) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Stavros Georgiadis
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
(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.

[2017] AATA 855

31 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction