G.A Shopfitting Equipments Pty Ltd (Migration)

G.A Shopfitting Equipments Pty Ltd (Migration) [2017] AATA 1578 (6 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  G.A Shopfitting Equipments Pty Ltd
CASE NUMBER:  1515332
DIBP REFERENCE(S):  BCC2015/2796502
MEMBER:Wan Shum
DATE:6 September 2017
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 06 September 2017 at 3:54pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) – Position not genuine – Sales and Marketing Manager – Applicant provided further information on nominated position and plans for expanding business
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 140GBB, 140GBC
Migration Regulations 1994, r 1.13A, r 1.13B, r 2.57(3A), r 2.57A, 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 30 October 2015 to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
G.A Shopfitting Equipments Pty Ltd, the nominator, applied for approval on 24 September 2015. 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 nomination was for approval of the occupation of Sales and Marketing Manager.
The delegate was not satisfied that the position is genuine and decided not to approve the nomination, finding that the nominator did not satisfy r.2.72(10)(f).
The nominator has sought review of that decision. A representative was appointed in relation to the review.
Mr Xiao Guang Wang appeared on behalf of the nominator at a hearing of the tribunal on 30 March 2017. The representative attended the hearing. The Tribunal also received oral evidence from Ms Yuan Chen by telephone. She is the associated visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Following amendments to the Regulations and applicable Instrument which directly affected the occupation of Sales and Marketing Manager, the Tribunal wrote to the nominator to confirm that there was an intention to continue with the nomination.
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 nomination was for the occupation of Sales Manager and identified Ms Yuan Chen, the visa applicant, as the person who will work in the nominated occupation.
The business of the nominator since it began operating in 2003 is the supply of shop fitting products such as the counter, display shelving, various wooden and metal equipment and mannequins. The business’s customers are mainly retail businesses, who have requirements for a particular type of mannequin for display purposes. Mr Wang is the owner and sole director of the business. The business employs 6 people including Mr Wang.
Mr Wang wishes to expand the business by employing Ms Chen who he considers has relevant skills and experience in this industry. They have had business dealings since 2008. She is based in China and has previously assisted him at the Shanghai trade show.
According to the organisation chart provided and the evidence at the hearing, the nominator employs Mr Wang as the director, a general manager, a ‘marketing specialist’, a project manager and a production ordering & QA employee. Mr Wang’s wife is responsible for the businesses’ finance, human resource and legal matters. The nominator sponsored Mr Wang’s nephew for the position of marketing specialist. The organisation chart has the production ordering & QA employee reporting to the proposed Sales Manager position who in turn is to report to the General Manager. Mr Wang explained that they are a small company and each position is involved in the various activities and tasks. For a small company, the main activity is for the business to operate so everyone, while having their own job, is involved in other tasks. However, the Tribunal noted a salary difference between the Sales Manager and General Manager positions and had concerns regarding the reporting lines reflected in the organisation chart. When this was put to Mr Wang, he said that for the position of Sales Manager, the person will face a lot more pressure and have a higher workload then the General Manager. The Sales Manager is expected to make more of a contribution to the company’s profits.
In terms of the Sales Manager position, Mr Wang explained that in the past decade, the Australian retail market had changed dramatically and the customer base had also changed. Ten years ago, the customers were small and medium sized retail businesses but many of these are no longer operating and have gone into bankruptcy. Their customers are now David Jones, CK and Tommy Hilfiger and these customers require a higher level of servicing from their sales team. An example of the change in the demands of the nominator’s customers is in relation to mannequins; their customers now want to differentiate their mannequins from other shops. For example, Millers is aimed at plus size women, so they want their mannequins to resemble their customers and the mannequins must be customised. Millers recently ordered 2000 mannequins from them.
Mr Wang considered that the position was necessary because the person had to be familiar with the design, production and manufacture of the mannequins and a person who would be able to source factories in China. The person needed to be very experienced in production and be able to liaise with customers. The production steps for mannequins involved the team taking 360 degree photographs, making it into a model and then the factory making a production sample, followed by liaising with the customer. Once satisfied, production would go ahead. He said that profit was very good in this market.
The plan for the business in the short term is to expand in the Australian market, they are currently not fast enough to fulfil orders, and they are making plans to undertake projects in the Asia-Pacific area. They are currently tendering to supply shop fitting products to Tommy Hilfiger across the region. He needs employees who have bilingual skills and experience in this area. The person they have nominated has a lot of customer resources in the Asia Pacific area. She has experience with building customer relationships and understanding customer requirements. She knows a lot of suppliers and has accumulated a lot of customer relations in the Asia Pacific, which has the fastest growing retail market in the world.
The nominator had already been making specialised mannequins for the past 7 to 8 years, but Mr Wang said that they had lost customers because of poorly managed orders, an example was with Katies. They had already started working on the order but they did not follow up well and Katies found another supplier. When further queried about the customer service element, Mr Wang said that the reason they lost the order is not because of customer service issues, but because the product did not meet their requirements. That is why having product knowledge is critical because Katies were not satisfied with their product.
When asked about the position being a new one to the business, Mr Wang said that he had been undertaking these types of duties himself, but feels that he is not up to it any longer as the customers are getting more and more demanding. He feels there are two options for the company now – to expand and, to do so, he would need to push and train his team to develop their customer service and for this he would need a Sales Manager, or to downsize. He wants to expand his company in the next 5 years and the team is very important to him. More recently he has participated in trade shows, one in Shanghai in 2016, for which the visa applicant assisted him. He was surprised by the results – they found Canadian based customers and also the Just Jeans Group, who they had previously tried to contact before but had not been successful in securing their business, have now ordered from them. He said that the attendance at trade shows has resulted in new customers, and that marketing development and planning is an important part of the role of the Sales/Marketing manager. Trade show participation is part of the scope of the position. He expects the person in the position to build the market and develop new customers, noting the changes to their customer base compared to 5 years ago.
Mr Wang has the experience in the Australian market and he would lead the visa applicant in this respect, but he said that it is more difficult for a person to develop expertise in the areas of product knowledge and having the ability to control production. The visa applicant’s previous experience in these areas is valuable.
He said that for the Sales Manager position, that relevant experience is very important and so is specialised knowledge. The person should be able to specify how to develop and manufacture the product so that the product can meet the customer’s requirements. This ensures they can sell the product to their customers. He wants to build a sales team.
Mr Wang said, in summary, the short term goal of the position is to increase the sale of mannequins as it is a huge market with great profit. In the mid-term, he wants to make use of the visa applicant’s customer resources that she has accumulated in China to develop the market in the Asia Pacific area as well as the Australian market. In the long-term, he wants the position to undertake market planning and to have a formal marketing development plan.
In reaching its decision, the Tribunal has referred to the ANZSCO description of the occupation of Sales and Marketing Manager below:
UNIT GROUP 1311 ADVERTISING AND SALES MANAGERS
ADVERTISING AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within 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:
·formulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers
·directing the development of initiatives for new products, marketing and advertising campaigns
·organising and controlling sales activities by setting product mix, geographical sales areas and customer service standards
·directing merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors
·directing sales methods and arrangements by setting prices and credit arrangements

Occupations:
131111 Advertising and Public Relations Manager
131112 Sales and Marketing Manager
…
131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1
Specialisations:
Business Development Manager
Market Research Manager
The Tribunal makes the following findings against r.2.72:
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 in this case is nominating on occupation under s.140GB(1)(b) and has identified an applicant for a Subclass 457 visa as the person who will work in the occupation for the purposes of r.2.73(1A). On the basis of material on the Department’s file, the Tribunal finds that the nomination was made using the approved form and fee (r.2.73(2), (3), (5) & (9)); the nominee has been identified in the nomination (r.2.73(4A)) and the nomination includes the location at which the occupation will be carried out, and the name and 6 digit ANZSCO code (r.2.73(4)).
As the application was made before December 2015, r.2.73(4B) does not apply.
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.
Documents before the Tribunal indicate that the applicant is an approved standard business sponsor for the period 2 July 2015 to 2 July 2020.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation be identified in the nomination.
In its application the nominator has identified Yuan Chen as the applicant for a Subclass 457 visa who will work in the nominated occupation.
On this basis, 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;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant stated in the nomination application form that the nominated occupation is Sales Manager and gave as the ANZSCO code “Sales and Marketing Manager”. The ANZSCO code for this occupation is 131112. The location at which the occupation is to be carried out was given as Belfield, NSW.
For these reasons the requirements of r.2.72(8A) 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 before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or an ‘associated person’.
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 the applicable instrument, which is currently IMMI 17/060. 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 nominated occupation of Sales Manager does correspond to an occupation in IMMI 17/060. The instrument does not require that the nomination be supported in writing by a specified organisation.
Since the nomination application was made and following the hearing, changes to the Subclass 457 visa program were made effective 19 April 2017. These changes include caveats introduced to certain specified occupations. The occupation of Sales and Marketing Manager (ANZSCO 131112) is one of these occupations. For the purpose of paragraph 2.72(10)(aa) of the Regulations, the relevant instrument provides that the specification of that occupation excludes any of the following:
·     Positions based in a front-line retail selling, or predominately involves direct client transactional interaction on a regular basis;
·     Positions in a business that have an annual turnover of less than AUD 1 million and, 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;
·     Positions that have a nominated base salary of less than AUD 65,000, and, 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 wrote to the applicant regarding changes to the Subclass 457 program.
The financial information provided demonstrates that in the previous three financial years (financial years ending 2014, 2015 and 2016), the nominator has an annual turnover of over AUD 4 million. The annual salary for the position was AUD 70,000. Both of these are above the minimum amounts set out in the Instrument.
The Tribunal has also been provided with BAS statements for the last four quarters, from July 2016 to June 2017, indicating total sales of over $6.2 million.
In relation to the nature of the nominated position and its duties, and the evidence provided, there is nothing which indicates that it is engaged in front-line retail selling or that it is predominantly involved in direct client transactional interaction on a regular basis.
On the basis of the above information the nominated occupation is specified, as the position is not one for which the occupation is inapplicable.
Therefore, on the basis that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument, the requirements of r.2.72(10)(aa) are met.
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).
The nominee’s base rate of pay, as reflected in recent salary documents, is $70,000 per annum, exclusive of superannuation. The relevant instrument, IMMI 13/028, specifies the threshold at $250,000. As the nominee’s annual rate of earnings is less than this, the applicant is required to be assessed under r.2.72(10)(c).
The nominee’s terms and conditions of employment are set out in her contract of employment. There is no other Australian citizen or permanent resident performing the same work in the same location.
Therefore, in the absence of an equivalent Australian employee, the Tribunal must use the methodology prescribed in Schedule A to legislative instrument IMMI 09/113, for the purposes of r.2.72(10)(AA).
In considering that instrument, the Tribunal finds there is no fair work instrument, state industrial instrument or transitional instrument that would apply to an Australian that is performing the role of Sales and Marketing Manager. In the circumstances the Tribunal has considered the inclusive examples of ‘relevant information’ listed in the instrument, such as job vacancy advertisements and remuneration surveys, in order to determine what would be payable to an Australian performing equivalent role. In particular the Tribunal has had regard to evidence provided by the applicant of the salary range and terms and conditions for similar positions that have been advertised. The Tribunal has also considered the market rate of pay for an employee for the role of Sales and Marketing Manager from the Job Outlook and ABS websites. Having regard to this evidence the Tribunal is satisfied that the terms and conditions that apply to the position are equivalent to and therefore 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 (r.2.72(10)(c)).
In addition, r.2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment will be greater than the Temporary Skilled Migration Income Threshold specified by the Minister in an instrument (although this may be waived if the circumstances in r.2.72(10A) exist). The current Temporary Skilled Migration Income Threshold (TSMIT) for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028. On the basis of the above evidence, the Tribunal is also satisfied that the base rate of pay that would provide to the Australian equivalent employee is greater that the relevant TSMIT (r.2.72(10)(cc)).
For these reasons the requirements of r.2.72(10)(c) and r.2.72(10)(cc) are met.
The Tribunal is therefore satisfied that the nominee’s terms and conditions of employment are in relevant respects no less favourable than those that are or would be provided to the Australian citizen who is performing equivalent work at the same location.
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 the relevant specified in the 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 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 information before the Tribunal is that the nominator has provided the relevant certifications when making the application in relation to the tasks of the position and, as the applicant operates a lawful business located in Australia, the nominated occupation being with the business. Furthermore, the qualifications and experience under ANZSCO is a level of skill commensurate with a bachelor degree or higher qualification or at least 5 years of relevant experience. As the associated visa applicant claims to hold a Bachelor Degree, the nominee appears to have the qualifications and experience commensurate with those specified for the occupation in the ANZSCO.
The Tribunal is satisfied on the basis of the relevant certifications in the application form that r.2.72(10)(e) is met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
As noted above, the delegate found the position of Sales Manager was inconsistent with the nature of the business. In particular the delegate was not satisfied that the nominee is likely to be actually performing the full breadth of duties as defined in ANZSCO in the relatively modest financial environment of a business of this scope and scale.
The Tribunal notes that currently there is no sales team, and has some concerns about this. The director gave evidence of his plans for the business which included establishing a sales team who would be managed by the nominee as Sales Manager. The director gave an overview of the role and said the nominee would be developing and reviewing the sales and marketing development. He said the position would also focus on developing the customer base, with the nominee having particular experience on the production side.
On the basis of this evidence and the documents provided, the Tribunal accepts that the Sales Manager role will plan, organise and direct the sales activities relevant to the operations of the nominator. It also accepts that the role is required to develop new customers and that it will design and implement plans to increase sales beyond the Australian market. The Tribunal has taken into account the size of the business, as demonstrated by documents such as receipted BAS statements, bank statements showing payments from customers including well-known retail brands such as David Jones and CK Underwear, and the profit and loss statements for the past three years. While the current staffing is on the small side, the nominator has plans to increase the numbers, and the Tribunal considers that the current turnover is high for a business of this size.
Having carefully considered all the new documentation and oral evidence provided, and in light of the planned growth and nature of the business, the Tribunal accepts that the position associated with the nominated occupation is genuine. The financial statements and other documents indicate that the turnover of the business is reasonable, and it appears that such documents were not before the delegate. The Tribunal notes that the occupation is now on the Short-term skilled shortage list which means that it is a two year position. In that time, it should be possible to establish a sales team and any benefits from the position will become apparent in this timeframe. It notes further that the business expansion plans given to the department with the application included increasing sales to over $3 million dollars and taking over the shop fiting business with big retailers such as David Jones, both of which have been achieved.
For these reasons the requirements of r.2.72(10)(f) are met. The Tribunal considers the position to be genuine but, while the associated visa applicant gave evidence at the hearing in respect of the role, it has not made a full assessment as to her suitability for the position. This will be undertaken when an assessment of her visa application is made.
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 Tribunal has been provided with a copy of the employment contract, recently signed by himself and the nominee. It has been amended and updated to reflect employment for a 2 year term and for a start date in October 2017.
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.
The applicant is not a party to a work agreement, and for these reasons 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 case, the nominated occupation is Sales Manager, ANZSCO 131112. This occupation is classified as Skill Level 1 in the ANZSCO. All occupations which are classified in the ANZSCO as Skill Level 1 are specified for the purposes of the occupational exemptions in s.140GBC(4)(a): IMMI 13/137. In addition, the position description for the nominated position indicates that the minimum required qualifications for the position are a qualification equivalent to a bachelor degree in business. In these circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the labour market testing condition in s.140GBA.
For these reasons, the labour market testing requirements in s.140GBA are not applicable. Despite this, the business did advertise the nominated position on 25 March 2015 on SEEK and other job websites (including a Chinese language website) and provided details of the attempt with the application. A document setting out the summary of domestic recruitment efforts was completed to indicate that while they had 9 applicants, none had the relevant skills or work experience for the position.
Conclusion
Having considered the additional material provided and the oral evidence of the Director, the Tribunal has found, for the reasons given above, that 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.
Wan Shum
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.
(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 that:
(i)       are provided; or
(ii)      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 1578

6 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction