ICT GROUP (AUST) PTY LTD (Migration)

[2022] AATA 1577

ICT GROUP (AUST) PTY LTD (Migration) [2022] AATA 1577 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ICT GROUP (AUST) PTY LTD

REPRESENTATIVE:  Mr VAIBHAV PATEL (MARN: 1466279)

CASE NUMBER:  1828298

HOME AFFAIRS REFERENCE(S):          BCC2018/933056

MEMBER:Namoi Dougall

DATE:18 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 18 February 2022 at 3:16pm

CATCHWORDS
MIGRATION–nomination – ICT Business Analyst – nominee performed the nominated occupation on a full-time basis – business was able to financially support the position – no adverse information – position associated with the nominated occupation is genuine – applicant was approved as a standard business sponsor – no less favourable terms and condition of employment – applicant lawfully operating a business in Australia– decision under review set aside

LEGISLATION
Fair Work Act 2009 (Cth)
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 2.57, 2.72, 2.73

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 September 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 27 February 2018. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg.2.72(10)(c) because there was not enough evidence to support the indication in the application that the terms and conditions of employment included a base rate of pay of $58,000 per annum and guaranteed annual earnings of $58,000.

4. Mr Emile Nader, a director of the applicant, appeared on behalf of the applicant appeared before the Tribunal on 10 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Ilyas Shaik.

5. The applicant was represented in relation to the review.

BACKGROUND

1. The business nomination application indicates that the nominee will be employed as an ICT Business Analyst on a base rate of pay of $58,000 per annum and guaranteed annual earnings of $58,000 for a 38 hour week. The nominee will be employed at the location of Surry Hills in Sydney, New South Wales.

2. Company information provide to the Tribunal indicated that the applicant provides IT services such as: cloud services; SD-Wan solutions; mobile, voice and data support; application development; Office 365 solutions; and managed IT services.

3. At the hearing Mr Nader stated that the applicant started in 2009 and due to Telstra accreditation changed from a distributor to a direct partner in 2015. Therefore, in 2015 the applicant became an IT and telecommunication provider. The company is based in Sydney, Melbourne and Perth.

4. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

The nomination must comply with the prescribed process

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

2. The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Mr Ilyas Shaik in the nomination. The nomination includes the location of various locations in Sydney, NSW, at which the occupation will be carried out and includes the name and 6‑digit ANZSCO code of the occupation of ICT Business Analysts (261111). For these reasons, the requirements of reg 2.72(3) are met.

Nominator is a standard business sponsor or party to a work agreement

1. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

2. Departmental records indicate that the applicant was approved as a standard business sponsor on 15 May 2018 and that the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor.

3. For these reasons, the requirements of reg 2.72(4) are met.

Identification of the nominee

1. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

2. The applicant has identified in the nomination Mr Shaik, the nominee, to work in the nominated occupation of ICT Business Analyst (261111). For these reasons, the requirements of reg 2.72(5) are met.

Requirements for existing Subclass 457 visa holders

1. As the nominee is not the holder of a Subclass 457 visa, the requirements of regs 2.72(6), (7A) and (10)(g) do not apply.

Information about the nominated occupation

1. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

   ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

   ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

   ·the location(s) at which the nominated occupation is to be carried out.

2. The applicant has provided the name of the occupation, ICT Business Analyst, and its corresponding ANZSCO code of 261111 and the location in Surry Hills, in Sydney which is where the occupation will be carried out.

3. For these reasons, the requirements of reg 2.72(8A) are met.

Certification relating to conduct under s 245AR(1)

1. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.

2. Having perused the Department’s file, the Tribunal is satisfied that the applicant has provided the required certification as part of its nomination.

3. For these reasons, the requirements of reg 2.72(8B) are met.

No adverse information known to Immigration

1. Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

2. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to Immigration, either about the nominee or a person associated with the applicant.

3. For these reasons, the requirements of reg 2.72(9) are met.

Specified occupation

1. Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: reg 2.72(10)(b).

2. The relevant instrument, IMMI 17/060, includes the occupation of Airconditioning and Refrigeration Mechanic on the Medium and Long Term Strategic Occupations List of that instrument, and it is not subject to any caveats.

3. Having compared the position description provided to the Department and the task set out in the offer of employment with the ANZSCO occupational description for an ICT Business Analyst (261111), the Tribunal is satisfied that the tasks of the nominated position substantially correspond to those listed in the ANZSCO occupational description.

4. For these reasons, the requirements of reg 2.72(10)(aa) are met.

Terms and conditions of employment

1. 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 (Cth).

2. 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: reg 2.57(3A). ‘Earnings’ is defined in reg 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.

3. 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: reg 2.72(10AA).

4. 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 09/113: reg 2.72(10AB). The Tribunal was provided with a new signed employment contract dated 25 June 2021 which indicated that the nominee’s proposed earnings would be $68,000 which is less than those specified in the relevant instrument, therefore, the requirements do apply.

5. The employment contracted dated 21 June 2021 also sets out terms and conditions of employment other than earnings including leave entitlements

6. Provided to the Tribunal were the financial statements for the financial years ending 30 June 2019, 2020 and 2021. The profit earned by the applicant for those financial years was: $1,814; $227,990; and $31,130. Also provided to the Tribunal were financial statements for the period ending 31 December 2021 which indicated that the applicant had earned a profit as at 31 December 2021 of $62,588 and the total equity was $338,428.

1. At the hearing Mr Nader stated that the applicant has 33 employees with 5 starting last Monday. There are 10 to 12 employed by the applicant and the remainder are employed by Rensure Pty Ltd (Rensure). The restructure for growth was done this week commencing on 7 February 2022 and the applicant is bringing everything back in house. They will be transitioning all employees back into the applicant.

1. At the hearing the Tribunal referred to the wages bill being reduced from around $350,000 to $30,000 and if the wages bill increases then on the current trajectory the applicant will make a loss. Mr Nader stated that the applicant has been there before, the applicant grew significantly previously to a turnover of $6 million in 2019/20 but then the COVID- Pandemic came and business took a hit and the applicant had to consolidate. The applicant is aggressively increasing the number of sales employees from 4 to 10 and increasing employees to meet expected demand. They have a current customer to whom they have supplied a RFQ which would grow the business significantly up to $40,000 per month. Another NSW Government Department customer, has added 2 sites as of the end of January 2022 which will be rolled out shortly and will be worth $10,000 a month.

1. After the hearing the applicant provided to the Tribunal a projected profit and loss statement for the period ending 30 June 2022 and for the financial year ending 30 June 2023. The estimated profits for those periods are $267,938 and $1,352,438 respectively. Also provided, to support the profit predictions, was a monthly income cash flow report which included revenue from partners and other sales activities (managed sales). The applicant also provided proposals and contacts for 5 managed services. A further 2 contracts have been submitted to clients and there is one request for proposal, all of which will be determined shortly.

1. Also provided after the hearing was a submission which stated that the applicant is gradually moving its employees back to the applicant who will directly hold the employment contracts and payroll. In support of this a copy of the applicant’s workers’ compensation insurance policy dated 21 November 2021 for 23 employees was provided. Also provided was a payroll advice of 2 directors and 3 employees who are employed directly by the applicant. The payslips provided also include the nominee’s payslips for the period 31 January 2022 to 13 February 2022 indicating that the nominee is paid by the applicant.

2. On the evidence the Tribunal is satisfied that the applicant will achieve enough growth to be enable them to progressively bring the employment of their staff back inhouse. The Tribunal is also satisfied that the applicant will have the financial capacity to provide the salary component of the applicant’s terms and conditions.

1. The business nomination application indicated that the nominated position is currently filled by the nominee and that there are no Australian citizen employees in the applicant’s business performing equivalent work at the same location. Provided to the Tribunal on 2 July 2021 was an organisational chart which indicated that the nominee reported to Pruthvi Maryada who in return reported to Vijaysingam and the Tribunal requested copies of the payslips of 3 employees. The payslips for nominee were for the period 18 June 2021 to 30 September 2021 and indicated that he was being paid $28.38 per hour. The payslip for Ms Maryada were for the period 1 November 2021 to 14 November 2021 and indicated that he was being paid $48.08 per hour. The payslip for Mr Kokulasingam Vijaysingham were for the period 1 July 2021 to 18 July 2021 and indicated that he was being paid $55.67 per hour.

2. On 20 January 2022, the applicant provided the Tribunal with a further organisational chart as at 17 January 2022. Mr Vijaysingham and Ms Maryada no longer appear on the chart and the nominee is 2 removed from 2 Senior Business Analysts which are stated as “TBA”. The 2 senior business analysts appear to no longer be employed by the applicant and even if they were the Tribunal accept that their salaries were based on their qualifications and experience which was significantly more than the nominee.

3. Provided in the renumeration report provided to the Tribunal on 2 July 2021 was a screenshot of the average base salary for a Business Analyst, IT in Sydney ranged from $58,000 to $112,000 with the average being $82,223 per annum. Also included in the report was salary data from glassdoor.com which indicated that as at 28 February 2021, the average base salary for an ICT Business Analyst was $60,000. It was submitted in the report that the nominee’s proposed salary was higher than the average on glassdoor.com and lower than Payscale and is justifiable in accordance with the nominee’s skills, qualifications and experience. It further submitted that the salary level above is what a significantly more experience candidate would be paid. Two advertisements were highlighted from screenshots on Indeed and Jobactive. The first job was one of 6 on the screenshot of the Indeed website and with a salary of $60,000 to $80,000. The second highlighted advertisement on Jobactive was one of ten advertised jobs and the salary was $60,000 to $75,000.

4. At the hearing the Tribunal discussed the market salary and that the salary of $68,000 is on the lower end of the PayScale range and below the average. Mr Nader stated that the nominee is qualified, already doing some of the work part time but needs to be trained in the job for the rest of the work, therefore, his salary is towards the lower end of the range. Subsequently the Tribunal was provided with a market salary report which included a report from the PayScale website and advertisements for similar jobs. The PayScale report was for Australia and the salary range is lower than the range indicated on the same website for the same occupation in Sydney. As the occupation is located in Sydney the Tribunal will refer to the range for a base salary of an average Business Analyst IT in Sydney which is $61,000 to $119,000 per annum with the average base salary being $85,563.

5. The February 2022 salary report also included a salary range provided by the Jobted website which was $55,111 to $130,000 per annum with the average being $83,393. It was submitted that the proposed salary of $68,000 fits comfortably in the range but a greater amount would be for candidates with significantly more experience than the nominee. Also provided were a number of advertisements from similar jobs from national recruitment websites indicating a salary range of $55,000 to $80,000.

6. On the above, the Tribunal is satisfied that the proposed salary package for the nominee of $68,000 plus superannuation guarantee attached to the nominated position is within the range of salaries that an Australian equivalent would earn for the occupation and is particularly on average for an employee who has the same level of experience, therefore, the Tribunal is satisfied that the nominee’s earnings are no less favourable than that which would be offered to the relevant Australian equivalent.

7. Accordingly, the Tribunal is satisfied that the nominee’s terms and conditions will be no less favourable than the terms and conditions that would apply to an Australian employee performing equivalent work at the same location and the Tribunal finds that the requirements of reg 2.72(10)(c) are met.

Base rate of pay

1. 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.

2. 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: reg 2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.

1. Likewise, the requirement in reg 2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: reg 2.72(10AB).

2. The nominee’s annual earning is less than the amount of $250,000 specified in the relevant instrument.

3. On the above and on the information and findings made in relation to reg 2.72(10)(c), the Tribunal is satisfied that the nominee’s proposed salary will be $55,162 plus superannuation guarantee and that this is greater than the TSMIT of $53,900. Further, the Tribunal is satisfied that the base rate of pay for an Australian equivalent would be between $55,000 and $80,000 which is also greater than the TSMIT amount. The Tribunal, therefore, finds that reg 2.72(10)(cc) is met.

Certification under reg 2.72(10)(e)

1. As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:

   ·     the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO;

   ·     if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity; and

   ·     the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.

2. The Tribunal is satisfied that the relevant certifications have been made in the nomination form. For these reasons, the requirements of reg 2.72(10)(e) are met.

Position must be genuine

1. 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.

2. A job description for the position of ICT Business Analyst was provided to the Department as follows:

   ·     Monitor and supervise system development procedures to guarantee positive project completion. This is achieved by coordinating with users and stakeholders to formulate and document business requirements in order to identify client’s specific business needs and make recommendations for cost-effective system and software solutions.

   ·     Develop and document functional specifications for systems development and implement innovative IT solutions, formulate system specifications for the development of software systems, as required.

   ·     Determine and identify ways to enhance system performance and efficiency and endorse optimal business practices and system functionality. Analyse existing systems to identify any limitations and drive process improvements to enhance system performance.

   ·     Sustain accurate records of appropriate technical and business information and create project documentation (functional and requirements specifications, design specifications), user, and training documentation.

   ·     Run system trials to monitor performance and guarantee top quality by preparing user and system test plans and conducting system tests to ensure adherence to functional requirements.

   ·     Develop project plans in relation to costs, resourcing, and management of projects. Become well-versed with principles, techniques, and methodologies of project management, such as SDLC (Systems Development Life Cycle) to develop project plans and to manage expenses and resources. Also, define the system approach/plan for deployment of functional solutions.

   ·     Assess the data obtained by the development team and organise hardware and software requirements for the projects.

   ·     Direct and oversee the budget preparation and planning of resources for a project.

   ·     Supporting the team at numerous levels of project and assisting them in task analysis.

3. The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the nominated occupation of ICT Business Analyst (261111). The tasks lister for the unit group ICT Business and Systems Analyst (2611) are as follows:

·working with users to formulate and document business requirements

·identifying, investigating, and analysing business processes, procedures and work practices

·identifying and evaluating inefficiencies and recommending optimal business practices, and system functionality and behaviour

·using project management methodologies, principles and techniques to develop project plans and to cost, resource and manage projects

·taking responsibility for deploying functional solutions, such as creating, adopting and implementing system test plans, which ensure acceptable quality and integrity of the system

·creating user and training documentation, and conducting formal training classes

·developing functional specifications for use by system developers

·using data and process modelling techniques to create clear system specifications for the design and development of system software

·acting as a central reference and information source, providing guidance and assistance in the system project decision making process

1. ANZSCO also states, in relation to the position of ICT Business Analyst (261111), that the person in the position: ‘evaluates processes and methods used in existing ICT systems, proposes modifications, additional system components or new systems to meet user needs as expressed in specifications and other documentation’.

2. At the hearing the nominee stated he has to communicate the requirements of the client site to correct section of the applicant. He translates the basic business requirements of the clients and has to communicate those requirements to the software development team. He trains the client team as the software is new and is design for client specifically. The quality of the output must be to the client satisfaction. He researches what is new in the market and would fit the customers’ requirements and does the backend work including preparing presentations for customers on the solutions the applicant will provide them.

3. At the hearing Mr Nader stated that the applicant identifies clients that need to digitise their process through the application development arm of the business. Once identified the nominee goes out to the client to collect information the clients believe they need. Once agreed as to costing and scope then the nominee will go back to the client and note their process which includes those currently being carried out and what they want to be carried out. The nominee then returns to the office and research as to whether there are different ways to carry out the process or different technology which will carry out the process in order to incorporate that information into the application development. Once this is completed and the customer is comfortable with what has been investigated and what they believe is the process, the nominee communicates with the software team in order to design a workflow. Once the workflow is designed the application development team code and develop the process. The draft version is given to the nominee to test to ensure it is what the customer needs and there are no bugs or errors. After testing the nominee will communicate with the customer and gives them a timeframe for their testing and ensuring that their requirements are met. If any problems, it is the nominee who will liaise with the software team as to what needs to be rectified. The nominee may need to train the customer’s teams on how to use the application. Mr Nader stated that this is what the nominee will be doing once he works full time but currently, he is mainly doing the research. As they now have 2 large clients who have committed to $600,000 worth of development, he is supporting the more senior business analyst who is supporting these customers.

4. On the evidence provided at the hearing the Tribunal is satisfied that the applicant performs some of the role and that this will change to performing all of the tasks of the nominated occupations once he is employed full time. or these reasons the requirements of reg 2.72(10)(f) are met.

Employment under contract

1. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument

2. The applicant has provided a signed employment contract dated 25 June 2021.

3. The financial statements for the period ending 31 December 2012 indicated that amount included for wages had reduced from $356,162 to $30,179. Further, a letter from the applicant’s accountant dated 22 June 2021 provided to the Tribunal stated that that the applicant arranges payment of its employees by way of various third party payroll companies. As referred to above Mr Nader stated at the hearing that from 7 February 2022 the applicant started to restructure and is in the process of bring all employees back into the applicant who will be employing them directly. This includes the nominee.

4. At hearing the nominee stated that he works for the applicant, but his wages have been paid for by Rensure. He has not signed any agreement with Rensure. He noticed that from Monday, 7 February 2022 that he is being paid by the applicant. He is working part time and is paid around $29 per hour and once his visa he will be paid $68,000 plus the superannuation guarantee. Subsequently the Tribunal was provided copies of the nominee’s payslips from 31 January 2022 to 13 February 2022 which indicate that his wages are being paid by the applicant.

5. On the evidence, particularly the evidence subsequently provided to the Tribunal including the nominee’s current payslips the Tribunal is satisfied that the requirements of reg 2.72(10)(h) are met.

Work agreements

1. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.

2. As the applicant is not a party to a work agreement, the requirements of regs 2.72(11) and (12) are not applicable.

Labour Market Testing

1. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

2. In this case, the nominated occupation is ICT Business Analyst ANZSCO 261111. This occupation is classified as Skill Level 1 in the ANZSCO. All occupations which are classified in the ANZSCO as Skill Level 1 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b) of the Act: IMMI 13/137. Furthermore, the position description for the nominated position indicates that the minimum required qualifications for the position are a bachelor degree or higher qualifications relevant to the nominated position. In the circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) of the Act are met and the nominee is exempt from having to satisfy the labour market testing requirements in s.140GBA of the Act.

3. For these reasons, the labour market testing requirements in s.140GBA of the Act are not applicable.

4. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Namoi Dougall
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.