Glasstech (Aus) Pty Limited (Migration)

Glasstech (Aus) Pty Limited (Migration) [2019] AATA 3682 (2 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Glasstech (Aus) Pty Limited
CASE NUMBER:  1620047
HOME AFFAIRS REFERENCE(S):           BCC2016/331664
MEMBER:Kate Millar
DATE:2 July 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 02 July 2019 at 12:10pm

CATCHWORDS
MIGRATION – nomination refusal– Temporary Residence Transition nomination stream – standard business sponsor– metal fabricator –sponsor was previously barred as a sponsor – adverse information– positive skills assessment provided – applicant applied for the visas before the bar was imposed– decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 140GB
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is another in a series of applications Glasstech (Aus) Pty Ltd (Glasstech) has made to review decision to refuse to approve the nomination of various positions. This application relates to the nomination of the position of metal fabricator in relation to Mr Meluleki Tshuma, who is a citizen of Zimbabwe.
The refusal of each of the matters before the Tribunal relates to adverse information known about Glasstech, which resulted in the application for approval of the nomination being refused. The adverse information is that Glasstech was previously barred as a sponsor for a period of twelve months for failing to comply with its sponsorship obligations and for providing false or misleading information. Glasstech does not dispute this is adverse information known to Immigration
Therefore, the central issue in this matter is whether it is reasonable to disregard this adverse information. However, for the decision to be set aside and substituted with another decision, the Tribunal must consider all of the criteria for the approval of a nomination.
As the background information on Glasstech and the reasons the bar was imposed are common across all of the applications for review, this is reproduced below in all of the related applications. The circumstances specific to the nomination of the position of metal fabricator for Mr Tshuma are address in turn below. A combined hearing was held for all the nominations on 10 April 2019, and Glasstech attended by its director, Mrs Koulianos. Mrs Koulianos was assisted by her daughter.
BACKGROUND
Glasstech (Aus) Pty Ltd (Glasstech) is a glazing company operating from Darwin. It supplies and installs glazing for high rise buildings. Its managing director, Ms Anna Koulianos, says it employs 30 to 120 staff, depending on the workload. It currently has eighteen Australian citizen/permanent resident employees and eleven 457 visa holders.
Mrs Koulianos said they have been in the building industry for over 25 years, starting as cabinetmakers before becoming glaziers approximately 15 years ago. Glasstech has operated for the last seven to eight years. Mrs Koulianos said the difference with Glasstech was that it designed its own sections, and at the time the designers for aluminium did not design to the cyclonic standards required in Darwin. She says they are the leaders in the industry in Darwin for glazing. She said the work is technical and very specific due to the need to meet cyclone, and have done work on hospitals, school and the airport.
Mrs Koulianos said approximately half their workforce is comprised of overseas workers. Before they started sponsoring overseas workers, they tried to recruit locally and this nearly resulted in closing the business as they could not recruit the expertise required. Many of their current overseas employees have work experience in Dubai and have the skills required. She said that from the time Glasstech was barred as a sponsor they have tried to recruit more local employees, but that even with the current employees on bridging visas, Glasstech is seeking more glaziers and a project manager.
Mrs Koulianos said her understanding of the reason the bar was imposed was that the 457 visa holders were not paid the correct amount. This was due to periods of unpaid leave, whereas Glasstech should have paid the same amount every fortnight regardless of whether the visa holders were working. She said the 457 visa holders were ultimately paid more than the $55,000 in the contracts as they always had overtime. She said in some fortnights the rate paid was lower due to personal problems of the employees and resulting non-attendance at work. She said this has now been rectified, and they engaged a legal firm to audit their practices. She said they now pay fixed fortnightly payments and assume five hours of overtime regardless of whether this is worked or not.
In relation to a sponsored worker working outside the nominated position, Mrs Koulianos said Glasstech hired a person to assist with their information technology. She said at the interview he had knowledge but when they were audited he presented limited skills. They now have a probation period in which to display skills.
On being asked if Glasstech does anything else to ensure that people have the required skills, Mrs Koulianos says she travels overseas to assess the workers. Mrs Koulianos does not have a trade as a glazier or carpenter, but said she knows what is required. For example, when she went to China the tasks was to prepare and install a timber door. Glasstech provide the door and materials, and she knows the steps required from a carpenter to install a door.
The false or misleading information related to the person stating he had qualifications he did not in fact hold. She said they now have a probation period to see of the person can do the job.
Mrs Koulianos’s evidence was consistent with the notice of decision relating to the sponsor bar. The decision record stated that Glasstech provide a reasonable explanation for the visa holders not working the guaranteed overtime which was corroborated by the visa holders and included medical appointments, driving assessment and fatigue. The decision record states “we have accepted the explanations as credible and have not pursued restitution on that basis.”
In relation to the information technology officer, the delegate found the person was working in the position of an office worker. The false and misleading information was that Glasstech had certified that the qualifications and experience of the information technology officer were commensurate with those of the nominated position. The delegate was not satisfied with Glasstech’s explanation that they provide the information in good faith as the position was advertised after it was filled by the nominee.
LEGAL FRAMEWORK
This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 November 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 22 January 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(9) because there was adverse information known about Glasstech; being that it had previously been barred as a sponsor for a period of 12 months by a delegate of the Minister.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73. As it applies to Glasstech, this process requires that:
· It is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a);
· It identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b);
· The nomination was made using the approved form and fee: r.2.73(2), (3), (5) & (9);
· It has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5);
· It has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and
· The nomination includes the location/s at which the occupation will be carried out, and the name and/or 6 digit ANZSCO code if the applicant is a standard business sponsor, or the name of the occupation in the work agreement if the applicant is a party to the work agreement; as well as the relevant certifications mentioned in r.2.72(10) or r.2.72(11): r.2.73(4A).
Glasstech nominated the occupation of metal fabricator in its application. The application identified Mr Tshuma as the applicant. At the time of the application, Mr Tshuma held a subclass 457 visa. The nomination was made using the approved form, and there is nothing to indicate the prescribed fee was not paid. Glasstech certified, in the application for approval of the nomination, that it had not engaged in conduct which contravenes s.245R of the Act, and the application for approval included the location at Winnellie, Northern Territory as the location where Mr Tshuma would be employed, and specified the ANZSCO code for a metal fabricator.
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.
Glasstech provided a copy of it approval as a standard business sponsor for the period 17 April 2018 to 17 April 2023, and r.2.72(4) is met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
Glasstech identified Mr Tshuma as the person who is work in the nominated position, and r.2.72(5) is 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 it applies in this cases the requirements are:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must meet certain other requirements.
The application for approval lists two other members of Mr Tshuma’s family unit and r.2.72(6)(a) is met.
While the Tribunal did not require Mr Tshuma to demonstrate his skills, and r.2.72(6)(b) does not apply, it notes that a skills assessment by Trades Recognition Australia dated 5 July 2018 that Mr Tshuma’s work experience (which was not in itself verified by TRA) is comparable to the required skill level for a metal fabricator.
Thera is nothing before the Tribunal to indicate that a previous Subclass 457 visa was granted after the requirements of PIC4006A (1) (c) had been waived on the basis of a written undertaking made by the current sponsor and whether the applicant has provided the equivalent undertaking. For these reasons r.2.72(7A) is met.
There nothing before the Tribunal to suggest Mr Tshuma was previously granted a Subclass 457 visa on the basis he met cl.457.223(6), and r.2.72(10(g) does not apply .
For these reasons the requirements of r.2.72(10)(g) are met.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the name of the occupations and corresponding ANZSCO code if there is one, and meet other requirements if there is no ANZSCO code. Glasstech has provided the name of the occupation and the ANZSCO code. as part of the nomination. It also requires the location at which the occupation is to be carried out, and Glasstech has provided the location.
It follows that r.2.72(8A) is met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act. The required certification was part of the application for approval of the nomination, r.2.72(8B) is 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.
As this issue is common to all of the related matters before the Tribunal, and a combined hearing was held on this point, the reasons are reproduced below:
· In this case, there is adverse information as defined in r.1.13A known to Immigration as Glasstech has been the subject of administrative action by a competent authority.
·     Glasstech concedes there is adverse information. It did not apply for review of the decision to bar it as a sponsor for a period of 12 months.   In issue is whether it is reasonable to disregard this information.
·     Glasstech provided a copy of the decision to bar it as a sponsor, and also provided information on a warning it received in 2012. It was audited in 2014, with the Department finding the response in 2014 satisfactory.
·     Mrs Koulianos said that while they did do the wrong thing, the applicant applied for the visas before the bar was imposed. While the Tribunal acknowledges the effect this decision may have on the visa applicant, in the view of the Tribunal, this does not in itself make it reasonable to disregard the adverse information.
·     Mrs Koulianos said the bar has affected the business financially and they have lost skilled labour as some employees had to find a new sponsor. They are unable to quote for particular projects due to the bar. She said they acted quickly to rectify the circumstances that led to the bar.
·     Mrs Koulianos also said there has been damage to the reputation of the business and an effect on the morale of the workforce. At the time, she said everyone wanted to leave. This made it difficult for them in trying to quote for work at the hospital when they had lost skilled workers.
·     Glasstech has five nominations affected by the decision not to disregard the adverse information and Mrs Koulianos said these are core people within the business who hold senior roles, and she was not sure if they could continue without these employees who have remained with the company despite the bar. It was clear Mrs Koulianos felt some obligations to these employees, which she said had been with the business for over four years. Mrs Koulianos said they know the clients and are familiar with the company procedures and sections. Mrs Koulianos said without these employees their ability to perform current contracts with a school, internal fit out of offices, an upgrade in a shopping centre and work on a stadium would be compromised.
·     Glasstech openly and readily provided all information required by the Tribunal, including information adverse to their interests. The Tribunal is satisfied that Glasstech genuinely operates the business and that in the absence of the skilled overseas workers, they will not be able to continue to operate. This would result in the loss of the business and the employment of Australian citizens and permanent residents. The Tribunal is satisfied they have taken action to rectify the defects identified in the audit. Although the Tribunal is not entirely comfortable with Glasstech paying its workers “guaranteed overtime” rather than a higher overall salary, it accepts this has the same effect on the earnings of the visa holders.
As a result of these considerations, the Tribunal finds it is reasonable to disregard the adverse information and the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The nominated position of building associate and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument. For these reasons the requirements of r.2.72(10)(aa) are met.
There is no requirement for the nomination to be supported by a specified organisation and r.2.72(10)(b) does not apply.
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 IMMI19/113: 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). This is $250,000 and as Mr Tshuma’s annual earnings are less than this amount the requirements apply.
Mr Tshuma is employed as a metal fabricator. There is one other metal fabricator employed by Glasstech listed at this site who is an Australian permanent resident, however the written submissions state there are no other people in this position. The Tribunal requested information on the other metal fabricator and recent payslips.
In response Glasstech provided the other employee’s recent payslips. The other employee is paid $30per hour and Mr Tshuma is paid $22.88 per hour. Glasstech submits this is because the Australian citizen employee is casual and Mr Tshuma is permanent. It states Mr Tshuma’s rate is consistent with the Award. The employment status on the payslip of the other employee is “casual”. In the absence of contrary information, the Tribunal accept this explains the different between the hourly rates. The Department in any future audits may wish to identify the casual and permanent employees for the purpose of looking at whether this requirement is met.
Glasstech’s application for approval of the nomination and its later written submission state Mr Tshuma is paid in accordance with the Manufacturing and Associated Industries and Occupations Award 2010, and he is classified at a level C10. This level is and Engineering/Manufacturing Tradesperson – Level 1 with a minimum training requirements of Certificate III. The minimum wage for this level specified in the Award (incorporating amendments to 20 December 2018) is $837.40 per week ($43,544.80 per annum).
Mr Tshuma’s employment contract states he is to be paid $54,143 made up of $45,200 base salary and $8,923 guaranteed overtime). Terms and conditions other than his salary are consistent with the National Employment Standards.
On balance, the Tribunal concluded the terms and conditions of Mr Tshuma’s employment are no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location, and the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028. In this case the amount of $53,900 is specified as the TSMIT.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI13/028, which is $250,000: r.2.72(10AB). As Mr Tshuma’s earnings are less than this amount, r.2.72(10((cc) applies.
The rate of pay identified by the Award that would be paid to an Australian citizen or permanent resident is $43,544.80 per annum. This is less than the TSMIT.
Mr Tshuma is stated to have earning of at least $45,220 plus “guaranteed overtime” of $8,923 with a total of $54,143. While the Tribunal has reservations about this pay structure, Mr Tshuma’s gross pay for the 2017 financial year is reported as $56,510 and in the 2018 financial year is reported as $55,106. These are both more than the TSMIT.
In circumstances where Mr Tshuma is a longstanding employee and given the reported difficulty accessing the skills the business needs in the Northern Territory the Tribunal considers it reasonable to disregard this requirement.
For these reasons the requirements of r.2.72(10)(cc) are disregarded for r.2.72(2).
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). As it applies to Glasstech, these are:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
Written certification has been provided for the above matters in the nomination. For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
Glasstech provided the ANZSCO description for a metal fabricator , which describes the occupation as marking off and fabricating structural steel and other metal stock to make or repair metal products and structures such as boilers and pressure vessels. Glasstech submits it requires metal fabricator to produce frames for the glass they produce. The work they produce using aluminium is cited on the website of the business, and the Tribunal accepts there is a genuine need for the position associated with the occupation.
The Tribunal is satisfied that the position associated with the nominated occupation is genuine, and the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h), as it applies in this case, 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,.
Glasstech provided a copy of the written employment contract with Mr Tshuma, and r.2.72(10(h) is met.
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. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136, which is twelve months. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The positon of metal fabricator is listed in ANZSCO as skill level 3, and according to IMMI 13/127 only skills level 1 and 2 are exempt occupations. There is nothing to suggest that labour market testing would be inconsistent with international trade obligations as specified in IMMI18/183.
The nomination states labour market testing was conducted from July 2015 onwards and attached a summary of domestic recruitment efforts.
This summary states that that the position was advertised in NT News at a fee of $282.70 but there was no response to the advertising.
There is little information about whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. The Northern Territory Government does not list metal fabricators as being a high propriety occupation, a propriety occupations or an industry priority occupation.[1] While this is cause for concern, as the other evidence that accompanied the nomination was that there was no response to the advertisement, the Tribunal finds there is no suitable qualified Australian citizen or permanent resident.
[1] >
There is nothing before the Tribunal to suggest Australian permanent residents or citizens have been retrenched or made redundant.
For these reasons, the labour market testing requirements in s.140GBA are met.
For the reasons given above, Glasstech 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.
Kate Millar
Senior Member

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

[2019] AATA 3682

2 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction