Industrial Adhesives Australasia Pty Ltd (Migration)

Industrial Adhesives Australasia Pty Ltd (Migration) [2018] AATA 1012 (19 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Industrial Adhesives Australasia Pty Ltd
CASE NUMBER:  1600209
DIBP REFERENCE(S):  BCC2015/2989355
MEMBER:Alison Mercer
DATE:19 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 19 March 2018 at 11:45am

CATCHWORDS
Migration – Business sponsorship approval – Nominated occupation of Electrical Engineering Technician – On the skilled occupation list – Genuine position – Business’s overseas expansion – Nominee – Appropriate skills and qualifications – Language skills fitted in with the applicant’s global expansion plans – Valuable employee – High level of technical support – ANZSCO duties undertaken by the nominee – Work agreement in place – Fair employment conditions – Exempt from labour market testing
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140, 140GB, 140GBA, 140GBB-140GBC
Migration Regulations 1994, rr 1.13A, 1.13B, 2.57, 2.72, 2.73
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 18 December 2015 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 applicant, Industrial Adhesives Australasia Pty Ltd, applied for approval on 13 October 2015 of the nominated occupation of Electrical Engineering Technician. 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) because the delegate was not satisfied that the position associated with the nominated occupation was genuine. The delegate found that the position description provided by the applicant appeared to have been copied directly from the occupational description for an Electrical Engineering Technician in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary. She was also not satisfied that the scope of the applicant’s business required a position at the ANZSCO skill level of an Electrical Engineering Technician, particularly in the absence of an organisational chart for the business.
The Tribunal received a review application on 7 January 2016. It was accompanied by a copy of the delegate’s decision and lodged on behalf of the applicant by Ms Joanna Kreinberg, a director of the applicant company.
On 14 July 2017, the Tribunal conducted a callover, the aim of which was to ascertain whether the applicant’s case was ready to be actively considered and/or set down for hearing. On behalf of the applicant, Ms Amy Neil, Personal Assistant to Ms Kreinberg, and Mr Stylianos Alepidis (the nominee) attended the callover and discussed with the Presiding Member the additional updated documentation that the applicant could provide to demonstrate that it met all of the criteria in r.2.72 (not only r.2.72(10)(f)). Ms Neil and Mr Alepidis attended with the written authority of Ms Kreinberg, who had advised the Tribunal that she was unable to attend the call over as she was overseas.
The Tribunal also discussed with them the fact that as of 19 April 2017, the list of skilled occupations that could be nominated pursuant to r.2.72 had been amended to remove some occupations from the list and to add occupational restrictions (known as caveats) to others. The Tribunal noted, however, that the occupation of Electrical Engineering Technician remained on the relevant list of skilled occupations and was not subject to any caveats.
Ms Neil and Mr Alepidis advised the Tribunal that Mr Alepidis, the nominee, was fulfilling a crucial role in the applicant business and had contributed to its performance. At the conclusion of the callover, the Tribunal indicated that it would shortly write to the applicant formally pursuant to s.359(2) of the Act to request the applicant to provide updated information demonstrating how it met all of the criteria set out in r.2.72.
The Tribunal did so on 17 July 2017. On 27 July 2017, the Tribunal received a response from Ms Kreinberg on behalf of the applicant which included:
·English translation of the nominee’s Diploma of Electrical Engineering awarded by the Technological Educational Institution of Western Macedonia, Electrical Engineering Department, issued 29 November 2012;
·draft balance sheet and profit and loss statement for the applicant for the 2016/17 financial year;
·advertisement for Electrical Engineering – Test & Tag Technician, salary of $55,000 per year in Footscray, posted on Indeed.com in July 2017;
·payslip for Ms Neil for 20 July 2017;
·letter from Ms Kreinberg dated 26 July 2017 in support of the nomination;
·organisational structure chart for the applicant;
·checklist of daily and monthly checks stated to be performed by the nominee in the nominated position;
·International English Language Testing System (IELTS) Test Report Form issued to the applicant on 10 September 2015 indicating the obtained an overall band score of 7.0 in a test he sat on 29 August 2015;
·Department letter of approval for the applicant as a standard business sponsor, issued 18 December 2015, for period 18 November 2015 to 18 November 2020;
·examples of the applicant’s promotional material translated into the Greek language, together with English versions;
·PAYG payment summary for the nominee for the 2016/17 financial year;
·employment agreement between the applicant and nominee, dated 26 July 2017, for fulltime position with annual base salary of $55,000 plus 9.5% superannuation; and
·management reports and tax return for the applicant for the 2015/16 financial year, plus tax returns for Ms Kreinberg and Mr Yoerg Kreinberg for the same financial year.
In her letter of 26 July 2017, Ms Kreinberg made the following points (in summary):
·the nominee had commenced employment on a part-time basis (20 hours per week) in October 2014. After 1 year, he was offered a contract as an Electrical Engineering Technician;
·as the applicant’s business had shown growth in the previous years, it was felt that there was a genuine need to have in-house Electrical Engineering services. The benefit of this was to have an employee who not only had the necessary technical skills and qualifications but who understood the exact nature and needs of the business;
·the nominee’s qualifications, skills and expertise in the Electrical Engineering area represented a perfect fit for the applicant to bring these functions in-house. The need for constant maintenance of the applicant’s electrical equipment and machinery, alongside its plans for development of procedures, were met by the nominee’s qualifications;
·some of the tasks undertaken to date by the nominee included: preparation of drawings, plans and diagrams of electrical installations and circuitry; collection of data and performing tests on motor control systems; estimations of materials costs and quantities; and assembling, installing, testing, calibrating, modifying and repairing electrical equipment and installations to conform with regulations and safety requirements;
·the nominee had been undertaking these tasks in relation to the applicant’s electrical equipment as he had the necessary certified knowledge from his Bachelor degree in Electrical Engineering from the Greek Technological Institution of Western Macedonia, with his classes of Techno-economical Analysis (for the comparison of financial costs and benefits), Project Management, Industrial Electrical Installations, Measurements, Electrical Machines, Automatic Control Systems etc all being essential to the tasks;
·in the past, the applicant’s required Electrical Engineering services were contracted to an external organisation. This represented a great expense to the business and also at times a lack of efficiency and immediate response to problems that were critical;
·one of the applicant’s core values was its unprecedented level of technical support to customers. This was not only to resolve any issues regarding the applicant’s products but to go the further step of by providing them with any emergency response needed involving their machinery that used the applicant’s adhesives;
·for example, the applicant had an agreement in place with its larger clients about its response time to problems. Any down time that was caused by problematic machines and/or adhesives, and that was not responded to by the applicant in a timely manner would cost the applicant significantly. This was a constant high risk for the applicant. The nominee’s role provided these clients with solutions within a few hours of a problem arising. These companies also ran night shifts, and waiting for an outside contractor to be available was not a viable option, given that emergency service technicians with appropriate qualifications were very expensive. They also needed to be inducted onsite before work commenced. The nominee had been inducted and could walk onsite at any time;
·the nominee was not only working in-house at the applicant’s premises in Dandenong but also supervised the procedures and provided service to customers directly at their sites, by making the necessary modifications to their machines, optimising the performance of the applicant’s adhesives;
·the nominee’s position had grown the applicant’s potential to talk to a larger audience and submit RFQ’s for larger manufacturing quantities by designing greater efficiency and expanded parameters on manufacturing and equipment along with more cost effective solutions for clients;
·furthermore, the wide range of the nominee’s skills through his classes in Computer Programming and Computer Networks had been utilised in the applicant’s infrastructure, as he had upgraded the applicant’s computers with new hardware, taken care of the software and had been able to respond immediately to any problems with the computer systems as he was able to provide constant supervision. This would otherwise have to be undertaken by an externally contracted IT person. The nominee had also created the applicant’s new website ( and this was a major upgrade to the company’s image;
·another major benefit of appointing the nominee was that his nationality and language skills fitted in with the applicant’s global expansion plans. The first targets for this expansion were Germany and Greece, and thus the nominee’s language skills and contacts in Greece had proven invaluable, and he had translated a number of product catalogues into Greek as well as setting up a Greek language website, something that would have otherwise been a major expense;
·the nominee’s current daily duties included performing start-up procedures on manufacturing machines; site inspections, repairs to hazards (such as naked cables); configuring settings of mixers and offsite maintenance; AutoCAD design; designing ISO processes/procedures and forms around his role; translations; costing set up for Greece; on call for larger clients of the applicant (such as Sorbent, Encore); purchasing; performing shut down procedures on manufacturing machines; and trial and testing of machine parameters onsite and with clients;
·the nominee’s fortnightly duties included material comparisons for cost effective new equipment; project management; designing automated control systems for efficiency; research and development; after-sales servicing; new installations; study of future installation of photovoltaic panels on the applicant’s factory roof; and website maintenance;
·the nominee’s monthly duties included maintenance checks on all machinery; checking whether machine specifications and cable wiring could handle mixing requirements (this changed frequently); upgrading wiring when required; assembling/reassembling mixers; air conditioner maintenance; quality management systems; and risk assessment;
·the applicant offered the nominee a contract in 2015 but his visa condition (condition 8105) meant he was limited to working 20 hours per week. As such, he was paid $32,840 for the 2016/17 financial year, which was the pro-rata’d amount of the temporary skilled migration income threshold of $53,900;
·in the time that the nominee had been employed with the applicant, he had recognised the needs and expectations of the company in every area and fulfilled his role with efficiency and enthusiasm. He had brought a valuable combination of knowledge, skills and expertise, together with dedication and commitment and was now irreplaceable; and
·as a result, the applicant asked the Tribunal to approve its genuine nomination to allow the nominee to continue to play a vital role in the company’s continued expansion.
On behalf of the applicant, Ms Joanna Kreinberg appeared before the Tribunal on 7 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Stylianos Alepidis. Ms Kreinberg and Mr Alepidis gave evidence separately, without having heard each other’s evidence.
Ms Kreinberg told the Tribunal that she started Industrial Adhesives Australasia Pty Ltd (the business) in 1998, after she faced being made redundant where she was working, and was encouraged by a colleague to set up her own business (she had been running the adhesives section of the chemical company for whom she worked) Ms Kreinberg explained that she had a double degree in Chemistry. She told the Tribunal that starting the business was very hard. Initially, she had 4 partners, but 3 dropped out in the first couple of years as they had young families and needed a steadier income than the company was able to provide at that time. The remaining partner stayed on for a few years but then he too left. Ms Kreinberg said that she then ran the business on her own. Her father was a builder and had built the factory for the business which she designed, and she bought equipment, in particular from Kodak, when it closed down. The business had now been operating for 20 years and had significantly expanded over that period. In particular, Ms Kreinberg said that after she married 10 years ago, her husband came to work in the business as well, and was able to take over the production side, allowing her to concentrate on technical development, accounts and sales and marketing. Since then, she had employed Shaun, who manufactured the bulk commercial batches, and an accounts person. Amy Neil, who had attended the callover on behalf of Ms Kreinberg, had a multifaceted role within the business. Her background was in graphic design and photography, and she designed and produced the business’ promotional material. She was also in charge of coordinating the business’ current ISO 9001 accreditation process, which was due to be finalised shortly. Ms Kreinberg indicated that this had been a very demanding process but that they were confident that the business would attain the accreditation, which would assist its planned overseas expansion.
Ms Kreinberg said that the business had already expanded to New Zealand and was exploring both Greece and Germany for business. She explained that she has Greek heritage and family there, while her husband is German and has family there. They therefore travel to both countries regularly to see family and make sure that their son maintains his language skills. As a result, she and her husband were looking at expanding into both of these countries. Their plans were further advanced in Germany, where they had good contacts and were in contact with the Dortmund council about suitable factory sites. They were also about to open a business bank account there as Germany required a business account with at least 24,000 Euro in order to establish a company there. Ms Kreinberg said that their progress had been subject to a set back due to a serious health issue affecting her husband, but they planned to proceed to establish a bank account and then a company there. In Greece, they had made a number of business contacts, through the connections of both herself and the nominee. In response to the Tribunal’s query, Ms Kreinberg acknowledged that the Greek economy was still in a difficult situation but noted that labour costs there were relatively inexpensive, and that many European companies had their manufacturing operations in Greece for that reason. The business was known to a number of European companies, as some of its major clients in Australia had their commercial headquarters in Europe.
In relation to the duties of the nominated position, Ms Kreinberg said that every time they produced a new batch of a particular product, the machinery required recalibration, which was done by the nominee. The machinery consisted of one 500 litre machine, one 1,000 litre machine, two 2,000 litre machines and one 10,000 litre machine, 2 heater tanks and various industrial scales and an oven. She and Shaun set a weekly running schedule for product batches for maximum efficiency and productivity, and the nominee reviewed this and made the necessary adjustments to the machinery to run the various batches. This was necessary because different products involved different ingredients, with different chemical properties, and different techniques. Ms Kreinberg said that the business’ point of difference with its major competitors (such as Bostick and Henkel) was its ability to tailor products to the particular needs of customers; that is, it had more of a ‘niche’ market, although it also produced standard adhesive products. Their selling point was customer service and adaptability. Ms Kreinberg said that their reputation ensured that they had not only specialised customers but also major clients, such as Sorbent (Asaleo).
In response to the Tribunal’s query, Ms Kreinberg said that until the business employed the nominee, they had an electrician come in to adjust/recalibrate the machinery for each new product batch run, which meant that they then had to make as much of that product as possible before having the electrician return to re-adjust the machinery for a new product to be manufactured. In contrast, being able to have this done in-house by the nominee had meant more flexibility, productivity and efficiency in the business’ production. Similarly, the business could now offer customers value-added servicing by having the nominee go onsite to their premises and adjust and/or advise them on their manufacturing processes to maximise the efficiency of the business’ products for them.
Ms Kreinberg said that she was referred to the nominee by a relative in Greece, who indicated that he was considering coming to Australia for better career prospects, had relevant qualifications to provide technical assistance in her business, and also had good English. She said that she arranged to meet the nominee, and was impressed by his professionalism and English skills. Subsequently, he was granted a student visa for Australia to undertake further English studies, and while studying, he commenced working 20 hours per week (as per the conditions of the student visa) for the business. Ms Kreinberg said that the nominee quickly picked up the particular aspects of the industrial adhesive production process and fitted in well with the existing employees and with the workplace culture. Ms Kreinberg noted that although the business had expanded its operations and range of products significantly over its 20 years of operation, it was nevertheless still a relatively small company in terms of the number of employees. For this reason, there was an amount of overlap in everyone’s duties, and it was very important for everyone to be able to work together harmoniously. The nominee had been able to do so, had improved his English skills further, and had proven invaluable about calibrating and maintaining the machinery (and also the equipment of customers) but also had contributed a great deal to the business’ IT systems (which had also assisted in in its ISO 9001 accreditation application) and its general operations. He had also been involved in assessing the feasibility of installing photovoltaic cells on the factory roof, as a possible means of reducing the business’ electricity bill of approximately $3,000 per month.

In response to the Tribunal’s query, Ms Kreinberg stated that the nominated position was genuinely needed within the business, and not created solely to facilitate the migration of the nominee. She emphasised that it was a demanding technical role, not a job for a ‘mate.’ The nominee had proven himself to be outstanding, hence the nomination, as both he and Mr Kreinberg wanted him to be able to work fulltime (he was currently on a bridging visa which replicated the 20 hour work limitation of his student visa) as there was more than enough work to justify this within the business, especially once its German presence was able to be established.
In response to the Tribunal’s query, Ms Kreinberg said that the first position description for the nominated position, provided to the Department in 2015, was drawn directly from the ANZSCO occupational description for an Electrical Engineering Technician as at that time, the business did not have any written position descriptions for any employees. She explained that this reflected the fact that it had grown for what was essentially a single person operation to a (still) relatively small company, and therefore did not have a lot of formal HR processes. However, now that the nominee had been employed for several years, his role was more defined and they were able to provide a more business-specific position description (the one provided to the Tribunal). Ms Kreinberg noted that this was done partially in response to the Department’s reasons for refusing the nomination, but creating formal position descriptions for all employees of the business was part of what was required for the business’ ISO 9001 accreditation.
Ms Kreinberg then went through the ANZSCO duties with the Tribunal and indicated which were undertaken by the nominee, and which ones were either only a sporadic or minor part of his role, or were not undertaken at all within the business. She said that he performed the majority of the ANZSCO tasks, but not all of them, and that they were at the skill level set out in ANZSCO.
Ms Kreinberg indicated that another bonus from the nominee’s employment was that he had been able to translate the business’ website into Greek and upload it. In contrast, the business had to pay to have its website translated into German, at a significant cost. The nominee had also translated a range of promotional material into Greek.
Ms Kreinberg then took the Tribunal through a number of documents she provided at the hearing (in addition to those already provided to the Tribunal), which included several Request for Quotation (RFQ) documents for various customers. Ms Kreinberg explained that these were highly technical documents provided on request to customers who were seeking tenders for manufacturing of particular products or that were considering changing suppliers. She said that the nominee had input into these, although she was the lead technical developer and had ultimate say, as Managing Director, in business decisions.
The Tribunal then discussed with Ms Kreinberg the nominee’s current salary range of $55,000 plus superannuation. It indicated that it had to be satisfied that the nominee’s terms and conditions of employment were no less favourable than those that would be offered to an equivalent Australian employee and asked her how she had determined what to pay the nominee. Ms Kreinberg said that she found what she believed was an appropriate hourly rate on the Fair Work Australia website and annualised this, but she indicated that this was over 2 years ago, so it was hard for her to remember the details. She indicated that the nominee’s salary was due for review in any case, and undertook to provide further information to the Tribunal about this after the hearing, along with BAS from 1 July 2017 to date and the business’ financial statements for 2015/16, as the 2016/17 ones had not yet been finalised (although a draft version had already been provided to the Tribunal).
The Tribunal then took evidence from the nominee, Mr Alepidis. He confirmed the circumstances of his employment by the applicant, and that both he and Ms Kreinberg were very happy with the ways things had worked out. He confirmed that he had an overseas Bachelor of Engineering degree and hoped in future to undertake a Masters degree. He said that he spoke English when he was offered the nominated position but had undertaken further English studies. His English had improved since he arrived in Australia in 2014.
In going through the ANZSCO duties of the nominated position, Mr Alepidis identified the ones that were most relevant to his role and indicated which ones were either minor or did not apply to the business. He confirmed that the main part of his role was the calibration and maintenance of the machinery in the business, which required constant looking after. He gave an example (substantiated with email correspondence) of a recent technical problem he had solved with the manufacturers of the applicant’s industrial scales, which involved him locating the manual online, attempting to reprogram the scales himself and then obtaining additional assistance from the manufacturers to resolve the remaining issue.
Mr Alepidis confirmed that he has assisted the business’ expansion by translating promotional material (including the company website) into Greek and making and listing contacts for Ms Kreinberg to follow up on her next visit, and that he is also currently reviewing the technical and economic feasibility of installing photovoltaic cells on the roof of the factory. He said that he enjoyed this technical research, as it drew on his previous employment experience in Greece.
At the conclusion of the hearing, the Tribunal agreed to defer its decision for 2 weeks to enable further financial information and employment terms and conditions information to be provided.
In addition, the Tribunal received the following from Ms Kreinberg and Mr Alepidis at the hearing:
·photographs of the machinery calibrated and maintained by Mr Alepidis;
·diagram of factory roof with photovoltaic cells installed, prepared by Mr Alepidis, together with material on various photovoltaic cells;
·email correspondence from the nominee to a supplier regarding resolution of technical problems with industrial scale, November 2017;
·promotional material for the business;
·equipment verification reports undertaken by the nominee on 5 December 2017 and 14 February 2018;
·various documents prepared in Greek by the nominee approaching and listing potential customers in Greece for the business;
·quotation provided to Ms Kreinberg for maintenance of equipment by an external applications engineer, 16 February 2018; and
·examples of Requests for Quotation (RFQs) provided by the applicant to various customers, variously dated.
On 16 March 2018, the Tribunal received the following additional material from Ms Kreinberg on behalf of the applicant:
·the 2014/15 financial report for the applicant;
·its BAS for the period 1 June 2017 to date; and
·a review of pay rates for the nominee under the relevant Award.
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
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 r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied, from having reviewed the documents on the Department’s file, that:
·the applicant nominated an occupation under s.140GB(1)(b) (being Electrical Engineering Technician) and thus meets r.2.73(1A)(a);
·the applicant identified the nominee, Mr Stylianos Alepidis, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);
·the nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);
·the applicant identified the nominee, Mr Stylianos Alepidis, in the nomination, thus meeting r.2.73(4)/(4A) and (5); and
·the nomination included the location at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 312312), thus meeting r.2.72(4).
The Tribunal is therefore satisfied that the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
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.
The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. The approval ceases on 18 November 2020.
Accordingly, the Tribunal finds that the requirements of r.2.72(4) are met.
Identification of the nominee
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.
As noted above, the Tribunal is satisfied that the applicant identified the nominee Mr Stylianos Alepidis as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.
Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.
Requirements for existing subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
As the Department’s records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.
Information about the nominated occupation
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 written 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.
The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Electrical Engineering Technician (ANZSCO code 312312) and specified that the location at which the occupation was to be carried out was Dandenong South in the state of Victoria, postcode 3175.
Accordingly, the Tribunal finds that the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
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 rr.1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 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: r.2.72(10)(b). The Tribunal is satisfied that this is not the case here.
In addition, since the nomination application was lodged on 13 October 2015 and refused on 18 December 2015, exclusionary caveats have been introduced in relation to the occupations that can be approved for the purposes of r.2.72(10)(aa). These were initially introduced in written instrument IMMI 16/059, which took effect on 18 April 2017. As of 1 July 2017, IMMI 16/059 was superseded by the current instrument IMMI 17/060. Currently, however, there are no caveats affecting the occupation of Electrical Engineering Technician.
The Tribunal is satisfied, having compared the position description provided to the Department by the applicant with the ANZSCO occupational description for an Electrical Engineering Technician, that the duties of the nominated occupation correspond to those of the occupation of ICT Support Engineer (ANZSCO code 312312). (A more extensive comparison is set out below in the Tribunal’s discussion of r.2.72(10)(f)).
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
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 (currently $250,000): r.2.72(10)(AB).
Based on the evidence before it, the Tribunal finds that the nominee’s current annual earnings consist of his base salary of $55,000 plus 9.5% superannuation as per the updated letter of employment dated 26 July 2017. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal is satisfied from the documentary evidence provided by Ms Kreinberg on behalf of the applicant that there is no Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.
Having regard to IMMI 09/113, the Tribunal was unable to find any state or federal award for the specific occupation of Electrical Engineering Technician (as the Electrical, Electronic and Communications Contracting Award 2010 appears to apply principally to electricians). The Tribunal notes that the post-hearing information provided by Ms Kreinberg indicates that she has based the nominee’s annual salary based on a pro-rata’d hourly rate of $28.79, the rate for a part-time Principal Technical Officer under the Manufacturing and Associate Industries and Occupations Award 2010 (Commonwealth) (as extracted from the website of the Fair Work Ombudsman). Extrapolated for a 38 hour week, this annualises to approximately $56,889 (or approximately $45,716 after tax). This Award is stated to cover employers throughout Australia of employees in the manufacturing and associate industries and occupations, including the manufacture, making, assembly, treatment, fabrication and preparation of various products, structures, articles, parts, components, materials or substances, including adhesives of all descriptions. The Tribunal considers that this is probably the most relevant Award for the nominated occupation.
However, the Tribunal has also had regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.
The Tribunal has consulted a range of sources of information, including:
·the Government’s Job Outlook website in February 2018 which indicates that the average weekly earnings before tax for Electrical Engineering Draftspersons and Technicians are $1,552 before tax (or $80,704 annually, which equates to approximately $61,314 after tax and Medicare levy, assuming a marginal tax rate of 32.5% using ASIC’s Moneysmart website Australian income tax calculator): Payscale website ( report (accessed 14 February 2018) provides a salary range for an Electrical Engineering Technician in Australia of $68,000 to $75,000 (after tax as above $52,993 to $57,578): , with the median salary being $71,639 (after tax as above: $55,377): for various full time Electrical Engineering Technician positions in Melbourne listed on Seek.com.au as at 14 February 2018 where a salary range is given:
oMaintenance Technician (Engineering), fulltime, northern suburbs, $80,000 - $89,900 (after tax, as above: $60,853 - $67,207); and
oService Technician (Fitters, Turners & Machinists – Electrical and Mechanical experience required), fulltime, bayside and south eastern suburbs, $60,000 - $64,000 (after tax, as above: $47,753 to $50,373).

The Tribunal is satisfied from the Award cited by Ms Kreinberg and the most recent general salary survey information from Job Outlook, and advertisements from seek.com.au that the salary package attached to the nominated position is within the range of salaries for the occupation. While the first Seek position involves a somewhat higher salary range, the Tribunal notes that the evidence from the other sources listed above generally indicates a broader salary range with a lower starting point and median range, within which the nominated position’s salary falls.
On balance, therefore, the Tribunal is satisfied that the nominee’s salary is no less favourable than those that would be offered to the relevant Australian equivalent.
The Tribunal is further satisfied that the original contract of employment dated 2 December 2017 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
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 the equivalent Australian employee.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,900).
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.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 (currently $250,000): r.2.72(10AB).
The Tribunal is satisfied from the evidence provided that the nominee’s annual earnings are $55,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc).
The Tribunal is further satisfied that the nominee’s annual earnings exceed the TSMIT, and that (based on the market salary rate information assessed in paragraphs 57 to 59 above) 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 also be greater than the TSMIT. In particular, the Payscale salary range median figure is $55,337 (after tax), which exceeds the TSMIT, as does the Job Outlook average weekly salary.
On balance, therefore, the Tribunal finds that the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.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 or specified in the instrument IMMI 17/060;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant written instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.
From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
Accordingly, it is satisfied that the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
From the evidence provided by the applicant to the Department and Tribunal, and the applicant’s website ( the Tribunal is satisfied that the applicant operates an industrial business that develops and manufactures a large range of commercial adhesives, including for towels and tissues, envelopes, manufacturers’ seals, bottle labelling, lamination and corrugation. It is based in south east Melbourne and presently employs approximately 10 people (including the nominee).
As discussed above, the delegate was not satisfied that the nominated position was genuine, as she concluded that the position description provided by the applicant was directly copied from the ANZSCO occupational description for an Electrical Engineering Technician, and that insufficient evidence had been provided to indicate that the scope of the business required a position at Skill Level 2, as the ANZSCO occupational description indicated. The delegate also noted that no organisational chart was provided to show where the nominated position sat within the company.
Since then, the applicant has provided additional documentation to the Tribunal, including an organisational chart (as at mid-2017). This indicates that Ms Kreinberg is the Managing Director, to whom the following positions report: Technical Sales Manager, Sales Manager, and Project Manager. The Technical Services Manager supervises an Electrical Engineer and a Laboratory Technician; the Sales Manager supervises 2 Sales Representatives (1 for Queensland and northern New South Wales, and 1 for southern New South Wales and Victoria) and a Customer Service officer; while the Project Manager supervises a Storeperson/Production/Dispatch person. There is also a Support Team consisting of an Accounts officer, a Quality Champion, a Purchasing and Invoicing clerk and an IT Technician. It appears that the nominee’s duties cover several of the above positions, as his name is listed under the headings of Electrical Engineer, Project Manager, Purchasing and Invoice clerk and IT Technician. Ms Kreinberg and the nominee confirmed at the hearing that, as the company is relatively small, most employees have duties that overlap more than 1 position within it. They emphasised, however, that the duties of the nominated position were most closely aligned with the ANZSO occupation of Electrical Engineering Technician.
The Tribunal has had regard to the ANZSCO occupational description for an Electrical Engineering Technician, as set out below:
UNIT GROUP 3123 ELECTRICAL ENGINEERING DRAFTSPERSONS AND TECHNICIANS
ELECTRICAL ENGINEERING DRAFTSPERSONS AND TECHNICIANS assist in electrical engineering research, design, manufacture, assembly, construction, operation and maintenance of equipment, facilities and distribution systems.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
…

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
opreparing drawings, plans and diagrams of electrical installations and circuitry
oassisting Electrical Engineers and Engineering Technologists in design and layout of electrical installations and circuitry on substations, switchgear, cabling systems and motor control systems
ocollecting data, performing tests and complex calculations, graphing results, and preparing charts and tabulations
oestimating materials costs and quantities
oinspecting designs and finished products for compliance with specifications and regulations
oassembling, installing, testing, calibrating, modifying and repairing electrical equipment and installations to conform with regulations and safety requirements
oundertaking electrical workshop functions such as installing assemblies for protection relays, metering and indicating devices
oassisting with research and experimentation programs

Occupations:
312311 Electrical Engineering Draftsperson
312312 Electrical Engineering Technician
…

312312 ELECTRICAL ENGINEERING TECHNICIAN

Alternative Title:
Electrical Engineering Technical Officer

Conducts tests of electrical systems, prepares charts and tabulations, and assists in estimating costs in support of Electrical Engineers and Engineering Technologists. Registration or licensing may be required.
Skill Level: 2
Specialisations:
Electrical Engineering Laboratory Technician
Electrical Instrument Technician
…
Given that the occupation of Electrical Engineering Technician is a subset of the ANZSCO Unit Group 3123 Electrical Engineering Draftspersons and Technicians, the Tribunal accepts that not all of the extensive list of duties under the Unit Group heading would necessarily be carried out by an Electrical Engineering Technician, as some would be specific to the other subset occupation of Electrical Engineering Draftsperson.
In her letter of 26 July 2017 and in her oral evidence at hearing, Ms Kreinberg indicated that the nominee has been employed by the applicant since October 2014, and that prior to this, the applicant contracted out its Electrical Engineering work to external providers.
As noted by the delegate, the position description originally provided to the Department by the applicant in 2015 essentially replicated the ANZSCO occupational description duties set out above. At hearing, Ms Kreinberg acknowledged this and explained that there was no existing position description for the nominated position at the time that the nomination was lodged (or indeed for most of the other positions within the company) as its operations had gradually expanded over a number of years. She therefore took advice and used the ANZSCO occupational description, but since the Department’s refusal decision, she had reviewed the nominee’s tasks and drafted a more accurate and detailed position description that reflected the scope of the nominee’s current responsibilities. She further noted that these had evolved over time.
The most recent set of tasks for the nominated positon provided to the Tribunal in Ms Kreinberg’s letter of 26 July 2017 and associated documentation includes the following responsibilities:
·preparation of drawings, plans and diagrams of electrical installations and circuitry;
·collection of data and performing tests on motor control systems;
·estimations of materials costs and quantities;
·assembling, installing, testing, calibrating, modifying and repairing electrical equipment and installations to confirm with regulations and safety requirements;
·daily tasks: performing start up and shut down procedures on manufacturing machines; site inspections, repairs to hazards (eg naked cables); configuring settings of mixers and offsite maintenance; autoCAD design; designing ISO processes/procedures; translations; costing set up for Greece; on call work for larger clients; purchasing; and trialling and testing of machine parameters onsite and with clients;
·fortnightly duties: material comparisons for cost effective new equipment; designing of automated control systems for efficiency; research and development; after-sales servicing; new installations; study for future installation of photovoltaic panels on factory roof; and website maintenance; and
·monthly duties: maintenance checks on all machinery; checking whether machine specifications and cable wiring can handle mixing requirements (this changes frequently); upgrading wiring when required; assembling/reassembling mixers; air-conditioner maintenance; quality management systems; and detecting risk assessment.
The Tribunal is satisfied that the position description above corresponds closely to the occupational description for an Electrical Engineering Technician as set out in ANZSCO, and also incorporates many (though not all) of the duties listed under the broader Unit Group heading Electrical Engineering Draftspersons and Technicians in ANZSCO.
As noted above, Ms Kreinberg disagreed with the delegate’s conclusions that the scope and scale of her business did not require a person carrying out a range of duties at the skill level for an Electrical Engineering Technician. Having had the benefit of extensive additional documents and an opportunity to speak with Ms Kreinberg and the nominee at the hearing, the Tribunal has formed the view that the nominated position does and would carry out the majority of the ANZSCO duties listed for an Electrical Engineering Technician. That is, the Tribunal is satisfied that the nominated position does involve extensive testing of electrical systems, preparation and analysis of charts and tabulations, and estimating costs. The Tribunal accepts that the latter duty is not done in support of an Electrical Engineer or Engineering Technologist but is done directly for the Managing Director, Ms Kreinberg. In particular, several examples were given of the nominee having tested and resolved problems with machinery and equipment were given by Ms Kreinberg and the nominee himself, which the Tribunal accepts.
Although a relatively small company (as acknowledged by Ms Kreinberg), the financial reports provided to the Tribunal indicate that the applicant’s profits have significantly increased in the period spanning the 2014/15 to 2015/16 financial years and the year to date sales for 2017/18 as shown in the BAS indicate that this trend is continuing. Proof has also been provided that the applicant has employed additional staff since the time of the delegate’s decision and that it has substantial work on its books. The Tribunal accepts Ms Kreinberg’s evidence that the nominated position sits within a specialist technical business that has a high reliance on maintenance of its specialist electrical equipment, and that contributions made by the nominee to date have assisted the applicant’s business to reduce its costs by having this maintenance performed in-house (and also provided to customers). It further accepts that the nominated position is the only 1 of its kind within the applicant’s business.
Accordingly, while the applicant company is relatively small in terms of the number of employees, the Tribunal is satisfied that it has a genuine need for the nominated position, and that the nominated position will genuinely carry out the tasks set out in ANZSCO for an Electrical Engineering Technician, given the applicant’s specialised field.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(f) are met.
Employment under contract
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 a written instrument.
The Tribunal is satisfied that the applicant provided an updated letter of employment for the nominee dated 26 July 2017 to the Tribunal indicating that the nominee’s salary had been increased to $55,000 plus superannuation. The original employment contract was provided to the Department in October 2015, when the applicant’s salary was $53,900 plus 9.5% superannuation.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.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 applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
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 s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The Tribunal is satisfied that the nominated occupation of Electrical Engineering Technician is a Skill Level 2 occupation and is thus exempt from labour market testing under IMMI 13/137.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alison Mercer
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.

[2018] AATA 1012

19 March 2018

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