Hong Ngoc Pty Ltd (Migration)

Hong Ngoc Pty Ltd (Migration) [2017] AATA 1548 (25 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hong Ngoc Pty Ltd
CASE NUMBER:  1503602
DIBP REFERENCE(S):  BCC2014/3308821
MEMBER:Danica Buljan
DATE:25 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 25 August 2017 at 3:45pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) – Terms and conditions no less favourable – Loss of right to a hearing – Position not genuine
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 359, 360, 363, 363A
Migration Regulations 1994, r 2.57, r 2.57A, r 2.72, r 2.73
CASES
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596
Yang v Minister for Immigration and Citizenship [2010] FMCA 890

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2015 to refuse to approve the applicant’s nomination under section 140GB of the Migration Act 1958 (‘the Act’) and regulation 2.72 of the Migration Regulations 1994 (‘the Regulations’).
The applicant applied for approval on 3 December 2014. A nomination of an occupation for a Subclass 457 visa is made under section 140GB of the Act, and regulation 2.73 of the Regulations. Subregulations 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 section 140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the requirement in paragraph 2.72(10)(c), which 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.
On 12 March 2015 the applicant applied to the Tribunal for review of the delegate’s decision, and it included a copy of the primary decision record with the application for review.[1] The applicant was represented in relation to the review by its registered migration agent.
[1] AAT case file 1503602 (T1), f.19-24
The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]
[2] D1 - Departmental file BCC2014/3308821, folio numbered 1-38
[3] T1 - AAT case file 1503602, folio numbered 1-30
The Tribunal Invitation to Provide Information
On 16 February 2017[4] the Tribunal invited the applicant under subsection 359(2) of the Act to provide information that demonstrated that it met all the requirements of regulation 2.72 at time of the Tribunal's decision. The invitation included a copy of this regulation to facilitate the applicant’s response.
[4] T1, f.69-74
The Tribunal letter also stated that, unless the applicant sought and was granted an extension of time for this purpose, the requested information should be received by the Tribunal by 2 March 2017.
However, the applicant did not provide the requested information within the period prescribed for this purpose. Nor has there been any further communication from either the applicant or its representative in relation to the application for review at the time of the Tribunal’s decision.
The Loss of the Right to a Hearing before the Tribunal
The Tribunal notes that its invitation (dated 16 February 2017) was sent to the last address for service provided by the applicant in connection with the application for review.[5]
[5] T1, f.39 & 74
As the applicant has failed to provide the requested information before the time for giving it has passed, subsection 359C(1) applies and the Tribunal may make a decision on the review without taking any further action to obtain the information.
Further, as subsection 359C(1) applies to the applicant, subsection 360(3) states that it is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something it is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.
In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.[6]
[6] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost its right to appear before the Tribunal to give evidence and present arguments relating to the application for review.
The Tribunal Discretion to Adjourn the Review
Notwithstanding the applicant’s failure to respond to its invitation under subsection 359(2), the Tribunal has considered whether the circumstances of this case would warrant the exercise of its discretion under subsection 363(1)(b) of the Act to adjourn the review. This would be for the purpose of allowing the applicant additional time in which to provide information and submissions in support of its application for review.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[7] and Manna v Minister for Immigration and Citizenship[8] 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[9] regarding the reasonableness of any request for an adjournment, as well as the recent Full Federal Court decision in Minister for Immigration and Border Protection v Singh[10] which also considered this issue.
[7] [2002] FCA 617
[8] [2012] FMCA 28
[9] [2013] HCA 18 (8 May 2013)
[10] [2014] FCAFC 1 (4 February 2014)
In this case, the applicant provided a copy of the primary decision record with the application for review it lodged on 12 March 2015. Accordingly, the Tribunal observes that the applicant has been aware of the reasons for the refusal of its application for approximately 29 months at the time of decision.
In addition, the Tribunal notes that it also issued its subsection 359(2) letter to the applicant through its registered migration agent on 16 February 2017. This letter explained that the Tribunal must consider whether the applicant meets all the relevant criteria in regulation 2.72 at the time it makes a decision and that it required updated information for this purpose in respect of all of the criteria set out in regulation 2.72, including but not limited to the particular criteria the delegate found were not met. The letter also set out when the information had to be received by the Tribunal.
However, although the applicant was represented by a registered migration agent, who might reasonably be expected to understand the consequences for the application for review if the applicant did not respond to the subsection 359(2) invitation within the time allowed for this purpose, there was no response regarding the information the Tribunal had requested from either the applicant or its representative.
Correspondingly, the applicant and/or its representative also did not request an extension of time, or an adjournment of the review, for this purpose. Nor has there been any communication from either applicant or its representative with the Tribunal at the time of decision since it issued this invitation.
The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[11], Perram J held that it was reasonable for the Tribunal (differently constituted) in that case, in light of that applicant's past applications for extensions of time, to “eventually to put an end to the review process”.
[11] [2011] FCA 759 at [22]
In the present matter, the applicant has not repeatedly applied for extensions of time. However, the applicant has not provided the information the Tribunal requested that would address the issues that are central to this application for review. Given the time that has elapsed since the application for review was lodged on 12 March 2015, the Tribunal considers the sentiment expressed by Perram J in Ghori's case to have relevance to the exercise of its discretion under subsection 363(1)(b) of the Act.
Accordingly, in these circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues in the application for review. As a consequence, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the requirements of regulation 2.72 and section 140GB.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under the Act and Regulations there are three stages in sponsoring an employee from overseas in the subclass 457 visa programme:
·Sponsorship: An employer applies for approval as a standard business sponsor;
·Nomination: The employer nominates an occupation for a prospective or existing subclass 457 visa holder; and
·Visa application: The person nominated to work in the nominated occupation applies for the subclass 457 visa.[12]
[12] See PAM3 - MIGRATION REGULATIONS - SCHEDULES > Temporary Work (Skilled) visa (subclass 457) - nominations
In the standard business sponsor context, the nomination is the second phase of this three-stage business sponsorship scheme under the Act and the Regulations. Specifically, nomination is the process through which a standard business sponsor, or a non-Ministerial party to a work agreement, nominates for approval an occupation which a visa holder, visa applicant, or proposed visa applicant will undertake. This ensures that the standard business sponsor, or party to the work agreement, agrees to be the sponsor for that particular visa holder, visa applicant, or proposed visa applicant.
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in regulation 2.72 and, for nomination applications made from 23 November 2013, section 140GBA have been met.[13]
[13] Subsection 140GB(2)
Terms and conditions of employment
Paragraph 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.
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.[14]
[14] Subregulation 2.57(3A)
The meaning of ‘earnings’ is defined in regulation 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113.[15] 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.[16]
[15] Subregulation 2.72(10AA)
[16] Subregulation 2.72(10)(AB)
In its business nomination application the applicant indicated that it did not have any Australian employees in its workplace performing equivalent work to that of the nominee.[17]
[17] D1, f.6 reverse
In addition, the applicant provided a contract of employment (dated 1 December 2014) for the nominee/visa holder with with an annual salary of $80,000, inclusive of the superannuation component in support of its application.[18]
[18] D1, f.23-29
Despite the Tribunal invitation under subsection 359(2) of the Act to provide information that demonstrates that the applicant meets all the requirements of regulation 2.72 at the time of decision, the applicant has not since provided an updated contract of employment for the nominee, or any other evidence that would address the requirements of paragraph 2.72(10)(c).
Accordingly, the Tribunal finds that as the annual earnings of the proposed visa holder / nominee will be less than $250,000 per annum, subregulations 2.72(10)(c) and (cc) apply to the nomination. Therefore, the exemption available in subregulation 2.72(10AB) does not apply to the present application.
The Tribunal observes that the evidence regarding the nominated position in this case is limited to the position description[19] for a ‘Company Secretary’, which sets out the responsibilities, main duties, skills and qualifications required for this role, and the contract of employment the applicant and nominee signed on 1 December 2014[20], which is now more than 2 ½ years old.
[19] D1, f.22
[20] D1, f.23-29
Accordingly, based on the limited evidence before it, the Tribunal is not satisfied that the terms and conditions of employment will be no less favourable than those that are provided, or would be provided, to an Australian citizen or an Australian permanent resident performing equivalent work in the same workplace and location.
Accordingly, the Tribunal finds that the applicant does not meet the requirements of subregulation 2.72(10)(c).
Position must be genuine
Paragraph 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The applicant indicated in the contract of employment (dated 1 December 2014[21]) that it trades as the ‘Huyen Linh 2 Vietnamese Restaurant’ in the Melbourne suburb of Moonee Ponds.[22] It also nominated the occupation of ‘Company Secretary’ (ANZSCO Code 221211) for the purposes of the application.[23]
[21]   D1, f.23-29
[22]    D1, f.24 reverse
[23]    D1, f.6 reverse
As noted previously, beyond the position description[24] for the nominated position and contract of employment (dated 1 December 2014[25]) the applicant has not provided any further information regarding the nominated position.
[24] D1, f.22
[25] D1, f.23-29
Importantly, this is despite the fact that where the Tribunal invited it to do so on 16 February 2017 under subsection 359(2) of the Act. As a result, the Tribunal observes that the applicant has not provided any further information regarding the nominated position since it lodged the application for review on 12 March 2015. As such, the applicant appears to have lost interest in the application for review.
Consequently, at the time of decision in 2017 there is little in the evidence to indicate the current scale and size of the applicant’s business operations, its need for the nominated position and its financial viability, including its ability to pay the nominee the salary it has proposed for the nominated position.
Accordingly, given that the evidence before the Tribunal is limited to the applicant’s circumstances in 2014, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine at the time of its decision in 2017.
For these reasons, the Tribunal also finds that the requirements of paragraph 2.72(10)(f) and therefore subregulation 2.72(10) are not met at the time of its decision.
CONCLUSION
Accordingly, given its findings that the applicant does not meet paragraphs 2.72(10)(c) and (f) and, thus subregulation 2.72(10), which is are essential criteria for the nomination to be approved, it is unnecessary for the Tribunal to determine whether the applicant meets the remaining criteria set out in regulation 2.72.[26]
[26] The Federal Court has confirmed that once the Tribunal has established that at least one essential criterion had not been satisfied, it is not obliged to make findings in relation to any other criteria: see Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596.
Therefore, for the above reasons, the Tribunal is not satisfied that the applicant meets all the applicable criteria prescribed in the Regulations for the nomination to be approved. As a result, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Danica Buljan
Member

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

[2017] AATA 1548

25 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice