Grace DMS Pty Ltd (Migration)

Grace DMS Pty Ltd (Migration) [2021] AATA 5680 (20 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Grace DMS Pty Ltd
CASE NUMBER:  1814646
HOME AFFAIRS REFERENCE(S):          BCC2017/1703039
MEMBER:Katie Malyon
DATE:20 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 20 July 2021 at 5:08 pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – chef – genuine position – financial capacity to employ nominee and two others, including one other chef – size of business, with minimal profit and no tax or superannuation paid in the last financial year – no capacity to employ two chefs, so no offer of position to nominee – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 245AR, 359(2), 359A, 376
Migration Regulations 1994 (Cth), rr 2.72(10)(e), (f), 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hneidi v MIAC [2010] FCAFC 20
Qiao v MIAC [2008] FMCA 380
Re Drake v MIEA (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 May 2018 to refuse to approve the nomination made by Grace DMS Pty Ltd ABN 45 617 549 729 (the Company) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval of its nomination on 12 May 2017. 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 of the Act.
The delegate decided not to approve the Company’s nomination of the position of Chef ANZSCO 351311 for the nominee, South Korean national Mr Dongmin Jang, on the basis that it did not satisfy r.2.72(10)(f) of the Regulations because the delegate was not satisfied the position associated with the nominated occupation was genuine. A copy of the delegate’s decision was provided to the Tribunal. The delegate expressly referred to the absence of any verifiable evidence to support claims that the Company employs a part-time Chef (the nominee), 2 Cooks, a Kitchen Hand, a Restaurant Manager and 2 part-time Wait Staff. Based on the limited evidence provided, the delegate was not satisfied the nomination was lodged to fill a genuine skill shortage: rather, it appeared the position associated with the nominated occupation was created to facilitate a visa outcome for the nominee Mr Jang.
Background
The Company runs a Korean and Chinese dine-in and takeaway restaurant in Cairns, Queensland known as Haru Cairns, which ASIC records confirm commenced trading on 22 February 2017.
No documentation was lodged in support of the review application when the Company lodged its application for review with the Tribunal on 20 May 2018.
On 17 November 2020, the Tribunal wrote to the Company pursuant to s.359(2) of the Act inviting it to provide information to address all relevant requirements of the Act and the Regulations. Various documents were provided to the Tribunal on 1 December 2020 in response to its s.359(2) letter. Having perused the documentation provided in response to its s.359(2) letter, the Tribunal invited the Company to attend a MS Teams videoconference hearing and requested further documentation be provided.
Hearing – 14 May 2021
Kwang Pyo Kim appeared before the Tribunal on 14 May 2021 to give evidence and present arguments at a MS Teams videoconference. As confirmed by the ASIC records obtained by the Tribunal, Mr Kim has been the sole Director and shareholder of the Company since 31 July 2017. The hearing was held as a combined hearing with the Tribunal’s review of the delegate’s refusal of nominee Dongmin Jang’s Subclass 457 visa application (Tribunal Case No. 1817397). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. While Mr Jang used the interpreter consistently Mr Kim did not use the interpreter at all.
Both the Company and Mr Jang were represented by immigration lawyer/registered migration agent, Mr Kyu Man Hwang of Kyu Man Hwang Immigration Services based in Bankstown, Sydney.
Mr Jang’s evidence
At the outset, the Tribunal informed Mr Jang that the outcome of the review of refusal of his visa application was dependent on the Tribunal’s decision regarding the Company’s nomination for the position of Chef in respect of him. Mr Jang said he understood this. It indicated that the hearing with the Company would be in the nature of a Directions Hearing with the Tribunal discussing the further documentation it will need to consider the merits of the Company’s review application. Mr Jang acknowledged the Tribunal’s comments.
Asked about his work with the Company, Mr Jang told the Tribunal that he has been working as Chef at the Haru Cairns restaurant for about 6 years and that he works every day except Monday and Tuesday. He added the restaurant is currently staffed by 4 people in addition to himself: Bonggwan Shin works full-time as a Cook; 2 named Waitresses who work part-time; and, there is also a Kitchen Hand Jing Liu who works part-time. Mr Jang told the Tribunal he worked in a restaurant in Korea and then later studied English in the Philippines which is where he completed his IELTS test (on 18 April 2015). He also told the Tribunal that he initially came to Australia on a Working Holiday Subclass 417 visa and come back to undertake studies in management as the holder of a Student visa.
Mr Kim’s evidence
Given the lack of documentation in support of the review application lodged with the Tribunal, the balance of the hearing on 14 May 2021 was devoted to the Tribunal taking independent evidence from Company director Mr Kim.
The Tribunal discussed with Mr Kim the multiple criteria for approval of the Company’s nomination and the nature of further documentation it will need to consider the merits of the Company’s review application, in particular, whether the Company can demonstrate that it has the financial capacity to employ not only the nominee Mr Jang as a Chef but also 2 other foreign nationals in relation to whom the Tribunal currently is considering 2 other review applications:
1) Tribunal Case No. 1913029 involves review of refusal of the Company’s Regional Sponsored Migration Scheme (RSMS) nomination of the position of Restaurant Manager for nominee Mrs Hun Jin Lee. Mrs Lee and the Company are now represented in relation to their respective reviews by an agent located in Seoul, South Korea. The Tribunal notes the Company and Mrs Lee were formerly represented by an agent, Hee Kyong Kim, who was suspended by the Office of Migration Agents Registration Authority (OMARA) from practising for 2 years, effective 6 January 2020, following investigations by OMARA which concluded she was not a person of integrity and, further, she was not a fit and proper person to give immigration assistance; and,
2) Tribunal Case No. 1927090 involves review of refusal of the Company’s RSMS nomination of the position of Chef for nominee Mr Bonggwan Shin. Mr Shin and the Company are represented in relation to their respective reviews by an agent located in Brisbane.
Mr Kim told the Tribunal he does not work in the restaurant. Rather, he works full-time as a Support Worker with the NDIS, so he relies on Mr Jang for the operational management of the Haru Cairns restaurant. Mr Shin said he does not know what type of visa Mr Shin has applied for. Further, he said does not know the name Hun Jin Lee, nor was he aware the Company had nominated a lady by that name for the position of Restaurant Manager. Invited for his comments, the representative said that he had received all instructions and documentation direct from Mr Jang in relation to the Company’s nomination of him for the position of Chef. It was the representative’s understanding that Mr Jang had dealt directly with Mr Kim to obtain all necessary documentation from the Company.
Asked who paid the representative for assisting to lodge the Company’s nomination of Mr Jang as a Chef, Mr Kim said he had paid. In relation to why different agents in Brisbane and Sydney had been engaged to assist the Company in relation to its nomination of Mr Shin and Mr Jang respectively, Mr Kim said it was his view that the applicants should have a choice of choosing their own representative for their visa application and the Company’s related nomination.
Based on evidence provided, the Tribunal observed that it appeared there may have been a breach of s.245AR of the Act, which prohibits a person from asking to receive a benefit in return for the occurrence of a sponsorship related event such as nomination for a Subclass 457 visa. The Tribunal observed that the offence carries a penalty of imprisonment for 2 years or 360 penalty units, or both. A penalty unit is defined in s.4AA(1) of the Crimes Act1914 as $210, leading to a potential fine of $75,600 in addition to a prison sentence. Invited for his comments, Mr Kim declined the Tribunal’s invitation to comment.
The Tribunal noted that, despite expressly indicating in its hearing invitation that it required certain specified documentation be provided to enable it to assess whether the Company meets all of the criteria for approval of its nomination, only limited documentation had been provided. Essentially, this is the reason the reminder of the hearing was held as a Directions Hearing.
The Tribunal asked Mr Kim whether he had contacted the Company’s accountant to provide the requested financial information and copy bank statements to demonstrate that the Company is lawfully and actively operating as well as financially viable. Mr Kim told the Tribunal he did not know the name of the Company’s accountant. He looked up contact details on his mobile phone. Asked again whether he had reached out to the accountant to provide requested documentation in anticipation of the hearing, Mr Kim said he did not. Invited for his comments, the representative said that he had spoken with the nominee Mr Jang and told him that Mr Kim would need to speak with the CPA to get some documents.
By way of concluding comment, the Tribunal observed it anticipated forwarding within a week an invitation for the Company to attend a hearing in relation to review of refusal of the Company’s RSMS nomination of the position of Chef for nominee Mr Shin (Tribunal Case No. 1927090). It added communications in relation to the Company’s nomination of the position of Restaurant Manager for nominee Mrs Lee (Tribunal Case No. 1913029) would be forthcoming shortly.
As is customary, the Tribunal invited the representative for his comments before closing the hearing. He said he was unaware the Company had made another nomination application for the position of Chef and he was also unaware of the Company’s nomination position of Restaurant Manager. He opined one Chef only would be sufficient for a restaurant the size of Haru Cairns.
After the hearing, the representative notified the Tribunal that he has ceased to act for both the Company and Mr Jang. Some additional documentation was lodged with the Tribunal after the hearing.
Hearing – 31 May 2021
Mr Kim and Mr Jang appeared before the Tribunal by way of videoconference on 31 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. Only Mr Jang used the interpreter. Immediately following the hearing in relation to the Company’s nomination of Mr Jang for the position of Chef, the Tribunal held a hearing in relation to the Company’s RSMS nomination of Mr Shin for the position of Chef (Tribunal Case No. 1913029).
Mr Jang’s evidence
At the commencement of the hearing with Mr Jang, the Tribunal noted that some documents in the Department’s files for both his visa application and the Company’s nomination were the subject of s.376 Non-Disclosure Certificates dated 24 December 2020. The Tribunal observed that it had formed the view that the s.376 Certificates are valid. They both relate to information which had been given in confidence to the Department regarding Mr Jang. The gist of the information is it raises concerns regarding some of the documentation lodged in support of Mr Jang’s Subclass 457 visa application.
The Tribunal added that, whilst the information the subject of the s.376 Certificates is potentially relevant to Mr Jang’s Subclass 457 visa application, the focus of the Tribunal’s review at this stage is whether the Company meets all of the criteria for approval of its nomination. It confirmed that, in these circumstances, the Tribunal has had no regard to the information the subject of the s.376 Certificates. Mr Jang indicated he understood the Tribunal’s position in this regard.
Mr Kim’s evidence
The Tribunal then took independent evidence from Mr Kim. It reiterated its comments outlined above in relation to the s.376 Non-Disclosure Certificates.
Mr Kim advised the Tribunal that, arising from its comments at the earlier hearing, the Company would be withdrawing the nomination of the position of Restaurant Manager for nominee Hun Jin Lee (Tribunal Case No. 1913029). He added the Tribunal could expect to receive a Withdrawal from the representative in Seoul sometime this week. The Tribunal notes an incomplete Withdrawal was provided shortly thereafter. In the circumstances, the Tribunal wrote to the Company pursuant to s.359A of the Act regarding Mr Kim’s evidence at the hearing on 14 May 2021 that he did not know anyone by the name Hung Kin Lee, the Company had not offered Mrs Lee a position with Haru Cairns and it did not lodge any RSMS nomination in respect of a person by that name. When the Company did not provide a complete Withdrawal by the due date as set out in the s.359A letter, the Tribunal affirmed the delegate’s decision to refuse the nomination. It did so on the basis that: it was satisfied that the Company would not employ the nominee as a Restaurant Manager for at least 2 years; and, further, there is no genuine need for the Company to employ the nominee Mrs Lee.
The Tribunal noted that the Organisation Chart for the Company lodged with the Department in support of the nomination indicates that Mr Jang is currently the Chef and that Mr Shin works as a Cook at Haru Cairns. Mr Kim stated that’s wrong as it is Mr Shin who is the Chef and, in November 2020, he agreed he would employ Mr Jang as a Cook. The Tribunal put to Mr Kim that the nomination under review states that Mr Jang will be employed as a Chef. It also reminded Mr Kim of the former representative’s comments that the size of the business was such that it did not need 2 Chefs. Mr Kim acknowledged the Tribunal’s comments in this regard and added he agrees 2 Chefs are not needed at the moment but, moving forwards (and as the business grows), they will be needed.
In addition, the Tribunal discussed with Mr Kim its concerns regarding the financial viability of the Company. Asked about the location of his accountant, Mr Kim said she was based in Brisbane. Questioned as to why he would not use someone local in Cairns, Mr Kim said he had been recommended to use Ms Song. The Tribunal invited Mr Kim to review the address of his accountant’s office as set out in the financial documentation lodged with the Tribunal. He said her office was in Southport, not Brisbane. It appeared to the Tribunal that Mr Kim had limited contact with the Company’s accountant.
The Tribunal noted that the Balance Sheet in the Financial Report for the year ended 30 June 2020 confirms that no tax has been paid to the Australian Taxation Office (ATO): it records an increase in the ATO running balance account from $44,323 as at 30 June 2019 to $82,529 as at 30 June 2020. Mr Kim admitted he is aware of this issue and has now started paying off monies owing to the ATO. Further, the Tribunal noted it appeared only limited amounts of superannuation had been paid as Super payable had increased from $23,601 as at 30 June 2019 to $30,326 as at 30 June 2020. The Tribunal observed that it appeared the business has serious cash flow concerns. Mr Kim responded he has set up something to deal with these overdue amounts.
In addition, the Tribunal noted profit for the year ended 30 June 2020 was just $785 after a loss of $30,493 was reported for the year ended 30 June 2019. Further, the Profit & Loss Statement reports wages of $101,755 for the year ended 30 June 2020 and that this agrees with the figures in the Business Activity Statements (BAS) provided. Wages of just $58,689 were reported in the year ended 30 June 2090. The Tribunal observed that the Contract of Employment with Mr Jang provides for a salary of $65,000 per annum plus superannuation and, as such, it put to Mr Kim it appeared evident the Company could not afford to pay for 2 Chefs as well as other support staff. Mr Kim admitted the Company does not have capacity to employ 2 Chefs.
Documentation lodged post-hearing
On 4 June 2021, the Tribunal received a signed letter from Mr Kim. Relevantly, Mr Kim states that given the current situation, the Company only requires one full-time Chef and, as such, it cannot offer Mr Jang a Chef position. In relation to the application regarding Mr Jang, Mr Kim said the Company will be accepting the Tribunal’s decision.
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 Company meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the Company is an approved sponsor and meets all applicable requirements in r.2.72 of the Regulations: s.140GB(2) of the Act. In addition, for nominations made from 23 November 2013, s.140GBA of the Act must be met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. As noted above at para [3], this was the basis on which the delegate refused the Company’s nomination.
This requirement in the Regulations 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 is genuine. The Court confirmed that, in considering whether the position associated with the nominated occupation is genuine, the decision-maker is entitled to go behind the certification of matters required in r.2.72(10)(e) of the Regulations and reach a state of satisfaction as to whether or not there is a ‘position’ of the kind identified in the nomination, the person nominated to fill the position is in fact required to undertake the tasks of the kind set forth in ANZSCO and, further, the tasks required to be undertaken include a significant majority of the tasks set forth in ANZSCO.
Immigration policy includes detailed guidance as to decision-makers’ consideration of the criterion that the position is genuine in relation to particular fact scenarios. In this regard, policy provides examples for further assessment where the position does not appear to be consistent with the nature of the business. Relevantly, this arises in circumstances where the size or turnover of the business would not appear to support such a position. In exercising its power on review the Tribunal may have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal.[1] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or, in the case of the exercise of a discretionary power (not relevant in this case), the preferable decision.[2]
[1] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380
[2] See Shi v Migration Agents Registration Authority [2008] HCA 31, Crennan J at [140] and also Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jacobson JJ) at [34]

The Tribunal discussed during the hearing its concerns regarding the financial viability of the Company’s business and it is inability to support 2 contemporaneous nominations for the position of Chef ANZSCO 351311: the current nomination under review in respect of Mr Jang and the Company’s RSMS nomination of the position of Chef for Mr Bonggwan Shin. Company director Mr Kim acknowledged the Tribunal’s comments in this regard. After the hearing held on 31 May 2021, Mr Kim confirmed in writing in a signed letter dated 4 June 2021 that the Company only requires Mr Shin as its Chef. He states that the Company cannot offer the position of Chef to Mr Jang.
Having regard to Mr Kim’s advice, the Tribunal is not satisfied that that the position associated with the nominated occupation is genuine. Accordingly, the Tribunal finds that the requirements in r.2.72(10)(f) of the Regulations are not met.
For the reasons given above, the Tribunal is not satisfied that the Company 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.
Katie Malyon

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.
oOOo

[2021] AATA 5680

20 July 2021

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

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