H SOHI & M KAUR (Migration)
[2020] AATA 5878
H SOHI & M KAUR (Migration) [2020] AATA 5878 (8 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: H Sohi & M Kaur
CASE NUMBER: 1813666
HOME AFFAIRS REFERENCE(S): BCC2017/2158018
MEMBER:Katie Malyon
DATE:8 December 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 08 December 2020 at 12:56 pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Fruit or Nut Grower – terms and conditions of employment – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of decision – lack of current and updated information – base rate of pay – genuine position – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363AMigration Regulations 1994 (Cth), rr 2.57, 2.57A, 2.72, 2.73
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18STATEMENT 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 24 April 2018 to refuse to approve the nomination made by H Sohi and M Kaur (the Partnership) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The Partnership applied for approval on 19 June 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. 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 nomination on the basis that the Partnership did not satisfy r. 2.72(10)(c) of the Regulations because it had not provided sufficient evidence to demonstrate that the terms and conditions of employment proposed for nominee Bakhtaver Singh are no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work as a Fruit or Nut Grower ANZSCO 121213 at the same location in Coffs Harbour. Essentially, this was because although external salary data had been provided by the Company it related to a different occupation, namely, that of Farm Manager rather than the nominated occupation of Fruit or Nut Grower.
No documentation was lodged with the Tribunal in support of the review application apart from a copy of the delegate’s decision.
To enable the Tribunal to assess whether the Partnership meets all of the relevant requirements for approval of its nomination, on 9 November 2020 the Tribunal wrote to the Partnership pursuant to s.359(2) of the Act and invited it to provide updated and current information about its business and the nominated position. The Tribunal requested the Partnership complete its online Request for Business Nomination Information form.
The Tribunal’s invitation letter containing a link to its online Request for Business Nomination Information form was sent to the person appointed by the Partnership to receive communications on behalf of the Partnership, its representative Manjinder Sekhon of Visa Professionals. The Tribunal’s s.359(2) letter was sent to the email address provided by Mr Sekhon as part of the review application lodged on 11 May 2018.
The Partnership was advised that, if information in writing was not received by the Tribunal by 23 November 2020 or if the Partnership did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information. It was also advised that the Partnership would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
No information has been provided by the Partnership in response to the Tribunal’s s.359(2) invitation: further, it has not requested an extended period in which to provide the information. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Partnership is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the Partnership additional time in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the current COVID-19 pandemic, evidence that the Partnership meets all relevant requirements in r.2.72(3) - r.2.72(12) of the Regulations is likely to be forthcoming, whether the Partnership has had a fair opportunity to provide the relevant information or documents, and the significance of the information or documents to the Partnership. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh.[4]
[1] [2002] FCA 617
[2] [2012] FMCA 28
[3] [2013] HCA 18
[4] [2014] FCAFC 1
As noted above, on 1 May 2018 – that is, more than 2½ year ago - the delegate refused the nomination made by the Partnership because it failed to demonstrate that the terms and conditions proposed for the nominee are no less favourable than those that are provided or would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. A copy of the delegate’s decision was provided to the Tribunal when the review application was lodged by the Partnership’s newly appointed registered migration agent. No documentation was lodged with the Tribunal in support of the review application.
The Tribunal wrote to the Partnership under s.359(2) of the Act inviting it to provide information demonstrating that the nomination meets all the relevant requirements of r.2.72(3) – r.2.72(12) of the Regulations. The Partnership has failed to complete the Request for Business Nomination Information form and provide any of the requested information referred to in that form within the prescribed period set for this purpose and nor has it requested additional time in which to complete the form and provide the requested information.
In the circumstances of this case, the Tribunal considers the Partnership has had sufficient time in which to address all of the issues arising on review, or request an extension of time to address these issues. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C of the Act.
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 criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the relevant 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.
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) of the Regulations. ‘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 legislative instrument IMMI 09/113: r.2.72(10AA) of the Regulations. These requirements do not apply if the annual earnings of the nominee are equal to or greater than $250,00 bring the amount specified in the IMMI 13/028: r.2.72(10AB) of the Regulations.
In its nomination application, the base rate of pay for the nominee was specified by the Company as $97,700. There is no current information before the Tribunal which suggests that the base rate of pay will be $250,000 or greater. Evidence before the Tribunal, including information in the nomination and the Employment Agreement dated 14 June 2017 lodged with the Department, indicates that the nominee’s base rate of pay will be $97,700. As this amount is not equal to or greater than $250,000 as specified in the IMMI 13/028, r.2.72(10)(c) of the Regulations therefore applies in this case.
As noted above, the Company was invited to provide current and updated information about the base rate of pay and the terms and conditions of employment in the nominated position, including whether or not they are more favourable to an Australian citizen or permanent resident performing equivalent work in the same location. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide, such as recent employment contracts or letters of offer, recent salary surveys, advertisements, payroll reports and PAYG Payment Statements that relate to equivalent work in the same location. No response has been received to the invitation to provide information.
The Company has not provided any current information about whether or not there is an Australian citizen or permanent resident performing equivalent work at the same location. Nor has it provided any current information about the methodology, if any, used to determine nominee Mr Singh’s terms and conditions of employment, including his earnings.
Given the limited current information before it, the Tribunal is unable to satisfied 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 these reasons, the requirements of r.2.72(10)(c) of the Regulations are not 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, which is $53,900.
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) of the Regulations. 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 of the Regulations. The meaning of ‘earnings’ is provided in r.2.57A of the Regulations and is discussed above.
The requirement in r.2.72(10)(cc) of the Regulations do not apply if the nominee’s annual earnings are equal to or greater $250,000 as specified in IMMI 13/028: r.2.72(10AB) of the Regulations.
As noted above, there is no current information before the Tribunal which suggests that the base rate of pay will be $250,000 or greater. Evidence before the Tribunal, including information in nomination itself and the Employment Agreement, indicates that the nominee’s base rate of pay will be $97,700. As this amount is not equal to or greater than $250,000 a specified in IMMI 13/028, r.2.72(10)(cc) of the Regulations therefore applies in this case.
The Tribunal acknowledges that the nominee’s base rate of pay of $97,700 is greater than the TSMIT. However, the Company has not provided any current information which demonstrates that the base rate of pay for the Australian equivalent is greater than the TSMIT. The Tribunal is therefore unable to be satisfied that 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 TSMIT.
It follows that the requirements of r.2.72(10)(cc) of the Regulations are not satisfied.
The Tribunal has also considered whether it is reasonable to disregard the requirement in r.2.72(10)(cc) as provided for r.2.72(10)(A) of the Regulations. Despite the Tribunal’s s.359(2) invitation, no current information has been provided by the Company regarding the requirements in r.2.72(10)(cc) of the Regulations and nor have nay submissions been received about whether or not the Tribunal should disregard those requirements. In these circumstances, the Tribunal is unable to be satisfied that it is reasonable to disregard the requirements of r.2.72(10)(cc) of the Regulations. Accordingly, based on evidence before it, the Tribunal is not satisfied that it is reasonable to disregard the requirements of r.2.72(10)(cc) of the Regulations.
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.
The Company has provided no current evidence in response to the Tribunal’s s.359(2) invitation to demonstrate that the position associated with the nominated occupation is genuine. The Tribunal is therefore unable to be satisfied that the position associated with the nominated occupation is genuine.
Accordingly, based on the evidence before it, the Tribunal is not satisfied that r.2.72(10)(f) of the Regulations is met.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the Company meets applicable criteria for its nomination to be approved. In the circumstances, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Katie Malyon
MemberATTACHMENT - 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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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