GEONY PTY LTD (Migration)

GEONY PTY LTD (Migration) [2019] AATA 2970 (31 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  GEONY PTY LTD
CASE NUMBER:  1622444
DIBP REFERENCE(S):  BCC2016/2613307
MEMBER:Mr S Norman
DATE:31 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 31 May 2019 at 3:05pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – Wall and Floor Tiler – position not genuine – substantial slow-down in construction industry – no skill shortage – nominated occupation existed to facilitate nominee’s stay in Australia – does not have financial capacity to pay full-time employee – applicant could find Australian citizen or permanent resident suitable for role – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359
Migration Regulations 1994 (Cth), rr 2.72, 2.73, 5.19

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 9 December 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 Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 8 August 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied the position associated with the nominated occupation was genuine.
The applicant (represented by Mr Geon Young KIM) appeared before the Tribunal on 14 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hakmoon KIM and Ms Seungji YUN (the visa applicant and his wife). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean 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).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The nominator / applicant (Geony P/L) lodged an online application for a nomination approval on 8 August 2016. The nominated position was for a Wall and Floor Tiler (ANZSCO: 333411), and the nominee / visa applicant was Mr Hakmoon KIM.
On the nomination application, when asked if the nominator’s business tested the Australian labour market to ensure there were no suitably qualified and experienced Australian citizens or permanent residents readily available to fill the position or other similar position, the applicant answered “no”.[1] By decision dated 23 September 2016,[2] the delegate refused the nomination approval application, as the applicant was not (ie) exempt under s.140GBB (Major Disaster Exemption); or 140GBC (Skill and Occupation Exemption – Instrument - IMMI 13/137: Specification of Occupations Exempt from Labour Market Testing).
[1] Department – folio 7.
[2] Department – folio 32.
However, the Department subsequently determined that this decision was affected by jurisdictional error.[3] That was because the Korea-Australia Free Trade Agreement (KAFTA) entered into force on 12 December 2014. That precluded labour market testing in the 457 program (IMMI 14/107: A Determination of International Trade obligations - relating to labour market testing). As a consequence of KAFTA, labour market testing would not be applied to Korean nationals/permanent residents or to employees of businesses in Korea transferring to an Australian branch of that business, and being nominated under the 457 program.
[3] Department – folio 42.
The Department then decided to revisit the decision. Be that as it may, the applicant had then provided an undated letter from “Bigturn P/L”[4] which stated it was ‘extremely difficult to hire a quality wall and floor tiler who has years of work experience that works under a salary’; ‘rising property prices in Australia during the past few years has reignited the demand for building trades and experienced wall and floor tilers or for renovation of new construction’; that such persons engaged under a full-time employment contract would be paid around $27-$28 per hour in accordance with the Building and Construction Award 2010. Also lodged was a Fair Work Ombudsman – Pay Guide - Building and Construction General On-site Award 2010.[5] The applicant also lodged other comparative rates of pay.[6]
[4] Department - folio 19.
[5] Department – from folio 22.
[6] Department – from folio 21.
By letter of 25 October 2016,[7] the Department requested more information to support the nomination application. That information was to be provided within 28 days (from the same day as the letter was emailed to the nominator). On 9 December 2016, the Department delegate said the applicant had not responded; and went on to find the applicant did not satisfy r.2.72(10)(f); and consequently, that they did not satisfy r.2.72(10).
[7] Department – folio 36.
In their decision, the delegate said that based on the evidence before them, it appeared the nominated occupation existed solely to facilitate the stay of the nominee in Australia rather than to fill a genuine vacancy or skill shortage.[8] The delegate then said the nominator had not provided evidence to support claims of moderate business growth (as was claimed), and the principal focus of the nominator appeared to be that it was “not easy to find skilled tilers who can work independently without supervision”, and that “most tilers that wanted to work with him were inexperienced and made mistakes”.[9] The delegate also noted the nominator had been requested to provide evidence or explanation as to whether the nominee was a family relative or personal associate of the owner of the business (as both the nominator’s representative and the visa applicant shared the same surname). No response was said to have been received to this at the date of the delegate’s decision.
[8] Department – folio 64.
[9] Department – folio 63.
However, by letter dated 12 November 2016[10] the nominator did respond (this may have been referred to in the delegate’s decision – as the “2^nd statement from employer…dated 12/12/2016”[11]). The nominator said it was not easy to find a skilled tiler who can work independently without supervision; most tilers who wanted work were inexperienced or had less than two years of experience; such persons make mistakes which has to be corrected; the nominator is unable to supervise them all the time; he now wishes to employ the nominee; the nominee joined his business in July 2015 (though working part time); and the nominator requested the nominee be granted a visa.
[10] Department – folio 39.
[11] Tribunal – folio 2.
The delegate subsequently found the applicant did not satisfy r.2.72(10)(f); and consequently, that they did not satisfy r.2.72(10). The delegate then refused the approval of nomination Subclass 457 (Temporary Work (Skilled)) visa.
By s.359(2) letter of 15 February 2018,[12] the Tribunal wrote to the applicant (dispatched by email to his authorised recipient/migration agent), and requested updated and current information that would allow the Tribunal to consider whether the requirements in r.2.72 of the Migration Regulations, and s.140GB of the Act were met at the time of decision.
[12] Tribunal – folio 26.
By migration agent letter (email) of 12 March 2018,[13] was lodged:
·A letter from an accountant stating the nominating business had the financial capacity to sponsor the nominee (letter dated 27 February 2018[14])
·a list of current contract details including the names of the company, the value of contracts and the starting date (being 2017)[15]
·a statement by the company that its main business operation is laying tiling for other companies and that they need the nominee to satisfy contractual obligations
·that the nominee is not a family member of the director (and the Tribunal notes they share a common surname in Korea) and the company has no other reasons to nominate the visa applicant other than to carry out the tiling work.
[13] Tribunal – folio 36.
[14] Tribunal – folio 65 (reverse side).
[15] Tribunal – from folio 64.
Also lodged was:
·an IELTS test result dated 5 November 2015 (overall score 7.5)[16]
·a Director’s Report dated 30 June 2017[17]
·Notes to the Financial Statements for the Year ended 30 June 2017[18] - that noted that the net profit for 2016 was $4,747.63; and for 2017 it was $4,827.10
·A Trading, Profit and Loss Statement for the year ended 30 June 2017[19] - showing profit before income tax for 2016 as $4,747.63; and for 2017 it was $4,827.10
·BAS statements[20]
[16] Tribunal – folio 39 (reverse side).
[17] Tribunal – from folio 42 (reverse side).
[18] Tribunal – from folio 43 (reverse side).
[19] Tribunal – from folio 45 (reverse side).
[20] Tribunal – from folio 60 (reverse side).
By letter dated 12 November 2016,[21] the nominator also said the nominee joined his business in July 2015 (though working part time). The country information considered had stated:
[21] Department – folio 39.
Floored: Revenue is set to decline in 2018-19 due to reduced residential construction
The Tiling and Carpeting Services industry generates revenue from installation work on most types of building projects. The industry's performance has fluctuated over the past five years in response to trends in new building construction markets, particularly residential construction. Demand for the renovation and repair of existing buildings has also influenced demand for industry services. Demand for renovation and repair work on existing dwellings is heavily influenced by trends in household discretionary incomes, the outsourcing of household services, and substitution by DIY home owners. Industry revenue is expected to grow at an annualised 1.9% over the five years through 2018-19, to reach $4.6 billion, which broadly corresponds with trends in total building construction … [22]
…..
[22] Tiling and Carpeting Services - Australia Market Research Report – IBIS World – Date Published November 2018, accessed 13 May 2019
Industry Threats & Opportunities
 The industry’s performance has fluctuated in response to trends in key building markets
 Tiling contractors have benefited from long-term trends favouring wall and floor tiles
 Demand from the residential building market is forecast to improve from 2020-21 onwards[23]
…..
Industry Report - Industry Key Buyers Chapter
The Tiling and Carpeting Services industry has a low concentration of ownership, with the four largest contractors generating much less than 10.0% of annual industry revenue. The industry is characterised by its many small-scale contractors, which typically comprise just the working proprietor and partner. The industry has a highly fragmented structure. Few contracting firms operate in more than one state or territory and these firms do not hold a dominant position in the market. Two-thirds of enterprises have no paid employees and operate mainly as sole proprietorships or partnerships. Approximately 72.1% of enterprises generate annual revenue of below $200,000, while only 0.2% of enterprises employ more than 20 people and 2.0% of businesses generate annual revenue exceeding $2.0 mi … [24]
[23] Tiling and Carpeting Services - Australia Market Research Report – IBIS World – Date Published November 2018, accessed 13 May 2019
[24] Tiling and Carpeting Services - Australia Market Research Report – IBIS World – Date Published November 2018, accessed 13 May 2019
…..
Additional Insights for the Tiling and Carpeting Services Industry
IBISWorld has determined the most important Key Success Factors for the Tiling and Carpeting Services are:
 Ability to effectively manage debtors
 Ability to compete on tender
 Having a good reputation
IBISWorld analysts also discuss how external factors such as Demand from residential building construction and Demand from commercial and industrial building construction in the Tiling and Carpeting Services industry impact industry performance..[25]
and:
The number of Wall and Floor Tilers grew very strongly over the past 5 years and is expected to stay about the same over the next 5 years: from 22,800 in 2018 to 22,800 by 2023.
[25] Tiling and Carpeting Services - Australia Market Research Report – IBIS World – Date Published November 2018, accessed 13 May 2019
[26] Wall and Floor Tilers, Australian Government, accessed 13 May 2019.
Job openings can come from new jobs being created, but most come from turnover (workers leaving). There are likely to be around 9,000 job openings over 5 years (that's about 1,800 a year).[26]
At hearing, the Tribunal put the gist of the above information to the applicant for comment. The Tribunal also advised the applicant the construction industry in Australia (and particularly Sydney), appeared to have substantially slowed or reduced,[27] and as note above, there was a reduced demand for Floor and Wall Tilers.
[27] For instance see, ‘House prices continue to fall clearing way for rate cut’, Sydney Morning Herald, 1 May 2019, Accessed 14 May 2019; ‘The charts that prove Australia's house price downturn really is BIG (and why some are concerned about what it may mean for the economy)’, Money and Markets, 9 April 2019, , accessed 14 May 2019; and ‘House prices set to fall even further this year’, 9NEWS, 9 April 2019, accessed 14 May 2019.
Further evidence in the nomination application form (lodged 8 August 2016) was that the visa applicant was to be paid $58,000 per annum for full time work (the visa applicant commenced work with the nominator in July 2015 – part time). However, at the hearing the applicant said that last year the visa applicant earnt approximately $63,510 per annum (at hearing, it was said the visa applicant held a BVA, and only worked 20 hours per week).
Be that as it may, at hearing the applicant also said that he commenced his business in 2010, and the Tribunal concedes that many businesses post small profits in the first few years of operations. However, the Tribunal then noted that in the apparent boom years for the construction industry in NSW and Sydney (being 2016 & 2017), which was six and seven years after the applicant’s business commenced, the business posted small net profits (net profit for 2016 was $4,747.63; and for 2017 it was $4,827.10). Accordingly, and given the construction industry had substantially slowed and continued to slow, this would presumably have a corresponding effect on the nominator’s profits, and the Tribunal may not accept (and for the reasons below, now does not accept) the nominator could even afford to pay the visa applicant.
Regarding the substantial slow-down in the construction industry, the applicant said he was confident and hopeful that the business would improve. He also said that the slow-down in the industry related to apartments, and his business focussed on houses. The applicant then referred to the work he had undertaken in his business. However, the Tribunal said it may not accept the nominator would limit his business to houses when other opportunities may become available. The Tribunal also notes the country information sources cited herein, do not necessarily distinguish between houses and apartments, when referring to the slow-down in the construction industry.
After the hearing, and by letter of 27 May 2019,[28] the applicant said inter alia his business needs a tiler (including in luxury tiling); the business can pay the applicant a full time rate; it is better than employing sub-contractors; that Mr Geon Young KIM has adequate funds in his personal account (see personal bank statement dated 12 April 2019[29]); and it was hoped that a stable business like the applicant’s would promote more job opportunities.
[28] Tribunal – folio 159.
[29] Tribunal – folio 158.
After the hearing, and by migration agent submissions of 27 May 2019,[30] it was inter alia confirmed the applicant would provide personal funds for the business (evidence of a bank account for Mr Geon Young KIM and another person, with $179,764 credit was lodged[31]); it will assist the profitability of the company to employ a full time tiler as this would enhance the reputation of the business; there will be no need to remedy the work of sub-contractors, which had resulted in ‘huge losses’ presumably during the ‘boom years’; and the company is focussed on smaller jobs. Also lodged was a Transaction History bank statement for the business[32]; jobs undertaken in ‘April’[33]; eight quotations.[34]
[30] Tribunal – from folio 157.
[31] Tribunal – folio 158.
[32] Tribunal – from folio 156.
[33] Tribunal –folio 151.
[34] Tribunal - from folio 150.
However, and after considering all the evidence, including the post-hearing evidence and submissions (including the evidence of Mr Geon Young KIM’s bank details), and the aforementioned accountant’s letter (dated 27 February 2018[35]) suggesting the business retained the capacity to employ the visa applicant, the Tribunal is not satisfied the nominator’s business now has the financial capacity to be able to pay a full time wage to the visa applicant.
[35] Tribunal – folio 65 (reverse side).
Regarding the claim the applicant would use his personal monies to pay the visa applicant, this may be correct. However, in that case the Tribunal notes the business itself would not be able to generate the proposed salary for the visa applicant. However, in a period of substantial slow-down in the construction industry in Australia that would mean the applicant may exhaust his and his partner’s personal funds. The Tribunal made it clear at the hearing that it may not accept the nominator’s business could afford the proposed salary of the visa applicant, yet no explanation was provided as to why this offer would be made by the nominator, when the foreseeable future of the industry is very poor. At hearing the Tribunal noted it may not (and now does not) accept the applicant’s business would have the financial capacity to pay the visa applicant’s salary, at a time of substantial slow-down in the construction industry in Australia. Further, based on the evidence before it, the Tribunal is not satisfied that employing an extra tradesman, again in a period of substantial slow-down in the construction industry, would improve the applicant’s profitability to the extent hoped by the applicant. This is a material reason that had satisfied the Tribunal the position is not genuine.

The Tribunal also notes the visa applicant was said to only work 20 hours per week, though he was also claimed to have earnt around $63,510 in the past financial year. This is well in advance of the industry standard pay for full time Floor and Wall Tilers (as set out in the evidence lodged by the applicant). Though not wishing to make their case, nothing was said about this at hearing, and neither was any further evidence relating to this lodged in post hearing submissions. Be that as it may, even accepting the $63,510 was payment for 20 hours per week work, the country information considered has not satisfied the Tribunal the applicant could now pay full time work to the visa applicant. This is another, though far less important, reason that satisfied the Tribunal the position could not be genuine.
Next, and as noted at hearing, the need for Floor and Wall Tilers was said to be likely to remain static for a period of five years (2018-2023). The applicant said he had a high turnover of staff, he had to remedy problems caused by some sub-contractors, he had already trained the visa applicant (who he said was an excellent worker) and he did not wish to employ another person in the role. However, the purpose of the temporary work visa is to allow non-citizens to travel to Australia and work in areas that may not be able to be filled by Australian citizens and or permanent residents. Given the slow-down in the need for Floor and Wall Tilers in Australia for the next few years, the Tribunal is satisfied the applicant would now be able to find an Australian citizen or permanent resident who was suitable for the role, amongst those persons in the trade now seeking work.
After then considering all the accepted evidence, the Tribunal is not satisfied the nominated position is genuine. For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied 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.
Mr S Norman
Member

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

[2019] AATA 2970

31 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction