HURRICANES CORPORATE SERVICES PTY LTD (Migration)

HURRICANES CORPORATE SERVICES PTY LTD (Migration) [2020] AATA 2787 (2 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  HURRICANES CORPORATE SERVICES PTY LTD
CASE NUMBER:  1720252
HOME AFFAIRS REFERENCE(S):          BCC2017/1569634
MEMBER:Mr S Norman
DATE:02 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 02 July 2020 at 2:44pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine need for position – duties of nominated position compared with ANZSCO description – organisational chart – level of responsibility – business operating at loss or modest profit – effect of coronavirus restrictions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359(2)
Migration Regulations 1994 (Cth), r 2.72(10)(f)
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 and Border Protection on 17 August 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations). The Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 2 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) - position must be genuine.
The applicant/nominator (represented by Ms Niccita GLASS) appeared before the Tribunal on 16 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Craig GOLDBERG (a senior representative of the applicant company) and the associated visa applicant/nominee (Mr Ravi Kumar KANDAL). The applicant was represented in relation to the review by its registered migration agent.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. After then having discussed the evidence and submissions at hearing, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). In addition, for nominations made from 23 November 2013, s.140GBA must be met.
On 2 May 2017, the applicant/nominator (HURRICANES CORPORATE SERVICES PTY LTD) lodged a nomination application; the nominated occupation was for a Cafe or Restaurant Manager (ANZSCO: 141111); the nominee/visa applicant was Mr Ravi Kumar KANDAL; and the base rate of pay was $60,000 per annum.[1]
[1] Department – folio 4.
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 ANZSCO description of the nominated position (Cafe or Restaurant Manager - ANZSCO: 141111) provides (in part):
UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS
CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
…..
Tasks Include:
oplanning menus in consultation with Chefs
oplanning and organising special functions
oarranging the purchasing and pricing of goods according to budget
omaintaining records of stock levels and financial transactions
oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
oconferring with customers to assess their satisfaction with meals and service
oselecting, training and supervising waiting and kitchen staff
omay take reservations, greet guests and assist in taking orders
…..
141111 CAFE OR RESTAURANT MANAGER
Alternative Titles:
Food and Beverage Manager
Restaurateur
Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services. …..
The applicant advised that the duties of the nominated position included:[2]
[2] Department – folio 9.
·     ensuring adequate and appropriate staff resources are available to effectively manage your client services
·     ensuring all beverage stocks in the bar and storerooms are well stocked and accounted for
·     responsibility that pouring measures are being followed according to standard operating procedure
·     responsible for the training and education of all those involved in the service beverage products
·     responsible for the proper use and maintenance of all bar equipment and for the cleanliness of all bar … storerooms
·     ensuring that monthly stock takes are completed accurately
·     ensuring that … schedules for the bar are being followed accordingly
·     establish and maintain strong business working relationships with management, employees and customers ensuring regular contact and communication
·     develop and evolve the services under HCS span of control, ensuring regular adjustments and improvements are both recommended and implemented
·     company administration reporting requirements
·     create and instil a belief in customer service so as to ensure that customer expectations are met and exceeded
·     ensure that operations under direct span of control of HCS operate within the guidelines set by the law and the company, ensuring the highest possible standards are met at all times
·     energy efficient and effective team performance
·     promote efficiency and company standards
·     demonstrate positive and assertive leadership style
·     oversee staff during the session and ensure all are working efficiently and in the correct manner
·     cash management – correct balancing of till
·     ensuring that all beverage staff followed the correct Responsible Service of Alcohol policy
·     ensuring that three-week rosters are completed in advance, displayed and that staff are aware of their shifts
The applicant also lodged details of the restaurant premises, and evidence of the location. It was also claimed the visa applicant had completed a Bachelor of Hospitality from the University of Ballarat and was presently starting a Masters degree in International Hotel Management at Blue Mountains International Hotel Management School.[3] It was also claimed that between August 2009 and February 2010, the visa applicant worked as a Food and Beverage runner at a hotel and that he had completed a seven month internship as a trainee at a luxury hotel in Singapore. After completing the internship, the visa applicant returned to work as a supervisor at a named restaurant with a seating capacity of 300 people. Other details of the visa applicant’s work experience were provided.[4] The applicant also lodged evidence of a Lease agreement[5], and photographs of the premises[6]. The applicant also provided evidence from PayScale - which identified that Bar Manager positions in Sydney had an average salary of $53,802 per year; and they ranged from a little less than $36,000, to more than $70,000 per year.[7]
[3] Department – folio 25.
[4] Department – from folio 25.
[5] Department – folio 26.
[6] Department – from folio 77.
[7] Department – folio 38.
In their decision, the delegate noted that in ANZSCO, the Cafe or Restaurant Manager organises and controls the operations of cafes, restaurants and related establishments that provide dining and catering services. The delegate continued that, based on the evidence before them, some of the duties listed to be performed by the nominee appeared to be consistent with the role of a Cafe or Restaurant Manager as described in ANZSCO. However, when then assessing the claimed duties of the nominee in the context of all information lodged with the application, the delegate was not satisfied the position would have the specialised high-level operational and management focus as described in ANZSCO.
The delegate continued that the Organisation Chart (stated to only refer to the applicant’s Circular Quay venue[8] - though a similar Organisation Chart for the Darling Harbour venue[9] – where the visa applicant was to work – being two of the three venues operated by the applicant business – was lodged with the Tribunal), indicated there were numerous managerial and supervisory positions occupied in the applicant’s business. This included (for Darling Harbour) a Bar Area Manager (at hearing, the Tribunal was advised this position was now vacant), a Operations Manager, Kitchen Area Manager, Bar Manager, Bar Supervisor, Restaurant Manager, Assistant Restaurant Manager, Restaurant Supervisor (being 7 managers in total - not counting the vacant Bar Area Manager – along with other types of employees). The delegate continued that it was “difficult to conceive how the nominated position could be accurately described as responsible for organising and controlling the operations, as envisaged by the ANZSCO description of the nominated occupation” (at hearing the Tribunal was advised the Darling Harbour premises had a 280 seat capacity and the Tribunal accepts it is plausible, that multiple management positions may have been necessary to run the venue when it was operating at normal capacity).
[8] Department – folio 70
[9]
After having then assessed the claimed duties of the nominee in the context of the (then) business operating environment and all information lodged in support of the nomination application, the delegate was not satisfied that the level of managerial responsibility of the nominated position, was commensurate with the ANZSCO description of the nominated occupation; or that the nominee was likely to be actually regularly performing the key duties as defined in ANZSCO, of a Cafe or Restaurant Manager (ANZSCO: 141111). Consequently, the delegate was not satisfied the applicant met r.2.72(10)(f); or r.2.72(10). The delegate then refused the nomination approval application lodged by Hurricanes Corporate Services Pty Ltd.
By s.359(2) letter dated 16 March 2020, the Tribunal requested updated and current information addressing relevant criteria. In their response, the applicant lodged:
·     Accountant letter dated 12 August 2019 – amongst other things that said the applicant company was not required to be audited and there were no audited reports
·     Accountant letter dated 21 September 2017 which, amongst other things, stated:
We confirm that the following [financial information] is extracted from the books and records of the company:
·     Revenue generated for FY17 was $10,435,840
·     Wages (including superannuation) incurred for FY17 was $ 9,111,742
·     Wages (including superannuation) incurred for calendar year to date 2017 was $ 6,528,158
·     Applicant letter dated 7 March 2017 which provided the following information:
·     Employment contract dated 19 October 2016; and 17 January 2020
·     Photocopy of the face-page of a passport for a named person
·     Explanatory document titled “About Us” and another titled “About Hurricane’s”, and a menu
·     PTE Academic report for the visa applicant dated 23 February 2015 (identifying the visa applicant’s English-language scores)
·     Organisation chart (Head Office view) - listing a Director, Accounts Manager, Human Resource Manager, Marketing Manager, Operations Manager, Public Relations Coordinator, and with four other staff reporting to the Accounts Manager
·     Organisation chart (Hurricane’s Organisational Structure Darling Harbour)
·     Management reports for the year ended 30 June 2018:
·Net operating profit before income tax for 2018 - $2,306
·Net operating loss before income tax for 2017 – ($233,541)
·From the Income Statement for the Tear Ended 30 June 2018 - Retained Profits (Accumulated) at the end of the Financial year 2018 – ($505,009)
·From the Income Statement for the Tear Ended 30 June 2018 - Retained Profits (Accumulated) at the end of the Financial year 2017 – ($507,315)
When the gist of the above information was put to the applicant at hearing (particularly that which related to the claimed recent losses/very modest profit of the applicant business), the applicant asked whether this related to the whole group or just the Darling Harbour premises (the agent requested the Tribunal consider the whole group – currently three separate venues). The document from which the profitability of the business was taken was titled ‘Hurricane Corporate Services Pty Ltd …. Management Reports for the year ended 30 June 2018’ (which the Tribunal understood to have related to the whole group).
The agent also asked whether the Tribunal required further financial evidence, though as the financial information was lodged in response to the Tribunal s.359(2) letter dated 16 March 2020 (the Tribunal had also granted an extension of time within which to provide a response to its s.359(2) letter - new due date 14 April 2020), and the Tribunal did not wish to make the applicant’s case, the Tribunal advised it made no formal request for any further information (and the agent made no subsequent request to lodge evidence or submissions post-hearing).
That being said, the Tribunal put the gist of the following to the applicant at hearing:
The global economic upheaval sparked by the ongoing coronavirus pandemic will lead to the world's most severe recession since the Great Depression, "surpassing that seen during the global financial crisis a decade ago," according to a bleak report published on Tuesday by the International Monetary Fund…"[10]
[10] IMF Predicts Global Coronavirus Crisis Akin to the Great Depression, US News, 14 April 2020, , accessed 15 April 2020.
Other commentators stated:
Around $140bn was wiped from the value of shares as the ASX200 lost 7.33%, shedding 455 points to 5,760 points. The Australian dollar was also caught up in the sell-off and was trading as low as 63.98 US cents.
Oil stocks plunged and the price of oil fell by more than a fifth after Saudi Arabia slashed its official selling price and announced it would raise production. On some forecasts, retail petrol could be as low as $1 a litre in Australia soon.
The bloodletting on financial markets prompted both Westpac and Bloomberg Economics to forecast that Australia’s economy will contract for two successive quarters for the first time since 1991. The economy will shrink 0.6% in the first two quarters, Westpac said, while Bloomberg saw a contraction of 0.7%.[11]
and:
The prime minister today announced a second economic stimulus and support package, just one week after announcing $17 billion in cash payments, wage subsidies and business support.[12] [up to $320 billion[13] - though subsequently reduced]
and:
The JobKeeper payment scheme will end on Sunday, 27 September 2020 (13 fortnights from 30 March 2020).[14]
[11] Australia heads for recession as stock market falls 7.33% in worst day since GFC, The Guardian, 9 March 2020, accessed 1 April 2020.
[12] RBA Rate Updates, Infochoice, 18 March 2020, , accessed 1 April 2020.
[13] ‘Economic Response to the Coronavirus’, Australian Government, The Treasury, , accessed 21 April 2020.
[14] The JobKeeper Payment, Apr 17, 2020 | COVID-19 updates, News, Tax Banter, , accessed 15 June 2020.
The considered information also stated:
NEW SOUTH WALES
…..
Up to 50 people will be allowed in restaurants, pubs and cafes, subject to the four-square-metre rule. Bookings of no more than 10 people will be accepted and patrons must be seated.
ClubsNSW announced in a statement that the capacity of certain venues could increase beyond 50 patrons to a maximum of 500, in accordance with the number of restaurants and cafes inside the clubs.
“For example, a club with two restaurants and one cafe can admit up to 150 people at any one time, on the basis of 1 person per 4sq m and on the condition that those eateries are open at all relevant times,” the statement said.
“Under these arrangements, clubs can permit patrons in the bar and gaming rooms up to the venue capacity and with 1.5 metres physical distancing in all areas. Staff and contractors are not included in the capacity limit.”[15]
[15] Coronavirus: Full list of restrictions lifting in each Australian state from June 1, 1 June 2020, News.com, accessed 1 June 2020.
At hearing, the Tribunal also noted that many thousands of persons in Australia and NSW, were recently unemployed. For instance, in May 2020 it was stated:
Nearly 600,000 people lost their jobs last month, while a further 600,000 saw their working hours cut back
Unemployment jumped 1 percentage point to 6.2 per cent, which would have been much worse except that many people did not look for work
In all, the ABS said 2.7 million Australians either lost their job, had their hours reduced or left the labour force last month[16]
[16] 600,000 jobs lost in coronavirus shutdown, but unemployment only rises to 6.2pc, ANC News, May 2020, accessed 20 May 2020.
When discussed at hearing, the applicant claimed the Darling Harbour premises (where the visa applicant was to work – and had worked since 2015) held a 280 seat restaurant, which pre-COVID-19, may serve many times that number of customers over a weekend period. The Tribunal then referred to the substantial adverse impact on the Australian economy (brought about by the COVID-19 pandemic), that fears had arisen if the JobKeeper subsidy was ceased, that the already high numbers of unemployed may also be increased due to the cessation of the JobKeeper subsidy (which may also likely give rise to an inability of patrons to afford to attend the premises), and that when this was considered with the claimed recent losses/very modest profits of the applicant company (taken as a whole), the Tribunal may not accept there was a genuine need to employ the visa applicant as a Café or Restaurant Manager.
The applicant said they understood the limits on patronage may have been recently lifted (though the Tribunal understands the information cited above is accurate at the time of its decision), but the applicant conceded that social distancing requirements were still in place. Further, it was then conceded that the applicant business may (words to the effect) ‘not be what it was before COVID-19’. However, the visa applicant had many years experience, he had ‘worked his way up’ and was a trustworthy and loyal employee, who had helped train other staff members, and that the visa applicant was said to be an integral part of the business. The agent also advised that subject to the Tribunal decision, the applicant would be prepared to nominate the visa applicant for a permanent visa (the Tribunal noted that subject to its decision, this reflected a common visa progression).

Be that as it may, and though the Tribunal understands that speculation about the future economic recovery in Australia does not lend itself to scientific precision, that information which was considered by the Tribunal, in particular all that which is referred to herein, has satisfied the Tribunal there will not be a genuine need for the position of Café and Restaurant Manager in the applicant’s business for the foreseeable future. The Tribunal acknowledges the claim that the patronage for the Darling Harbour premises (where the visa applicant worked) will return and bookings are continuing. However, I am satisfied that such ongoing patronage, will continue to be substantially adversely impacted by the social distancing requirements that must be put in place; and the probable inability of many persons to afford to attend such premises. The Tribunal is therefore not satisfied there is presently a genuine need to engage the visa applicant as a Café or Restaurant Manager.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Mr S Norman
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)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.

[2020] AATA 2787

2 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness