ISABELA LUCENA PTY LTD (Migration)

ISABELA LUCENA PTY LTD (Migration) [2018] AATA 449 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  ISABELA LUCENA PTY LTD
CASE NUMBER:  1610531
DIBP REFERENCE(S):  BCC2016/591815
MEMBER:Denise Connolly
DATE:28 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 28 February 2018 at 10:06am

CATCHWORDS
Migration – Employer Nomination – Self sponsoring – Business profits – Debt to the ATO – Nominee’s earnings – Terms and conditions of employment contract

LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 359(2)
Migration Regulations 1994, rr 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 24 June 2016 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 applied for approval on 10 February 2016. 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 nominee in this case, Ms Isabela Da Silveira Lucena, is the Director and owner of the applicant business. 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 formed the view the position associated with the nominated occupation exists solely to facilitate Ms Lucena’s stay in Australia. He was not satisfied the position associated with the nominated occupation is genuine.
Ms Isabela Da Silveira Lucena appeared before the Tribunal, on behalf of the applicant, on 22 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The applicant has claimed that the business has a genuine need for a position Advertising Specialist (ANZSCO 225111) and that the nominee, Ms Lucena (Director/owner of Isabela Lucena Pty Ltd) would be employed in the position at Bondi, NSW. The applicant provided to the Department of an employment contract between the applicant and the nominee, Ms Lucena, dated 13 August 2013 signed by Ms Lucena both as the Director of the applicant business and as the nominee. It states that she will receive remuneration of $53,900 per annum plus superannuation. It provides that the position will perform the following tasks and responsibilities:
a.plan, develop and organise advertising policies and campaigns to support sales objectives
b.advise executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
c.coordinate production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints
d.analyse data regarding consumer patterns and preferences
e.interpret and predict current and future consumer trends
f.research potential demand and market characteristics for new goods and services and collect and analyse data and other statistical information
g.support business growth and development through the preparation and execution of marketing objectives, policies and programs
h.commission and undertake research to identify market opportunities for new and existing goods and services
i.advise on all elements of marketing such as product mix, pricing, advertising, sales promotion, selling, and distribution channels.
Other material was provided, including the applicant’s business plan, contract arrangements with various clients, advertisements for the position and a media planner buyer. The applicant also provided an organisational chart showing that the nominee is in fact the Managing Director of the business as well as the Advertising Media Specialist Consultant. The applicant provided a 2015 individual tax return for the nominee which shows that she was employed by the applicant business but also by JRM Hospitality Sydney Pty Ltd, and Tattersall’s Club.
The representative provided written submissions asserting that the position’s duties include a range of tasks similar to those described in ANZSCO. It is asserted that the nominee holds a Bachelor of Social Communications (Specialist in Advertising) from the University of Potiguar, and also has an Advanced Diploma in Marketing completed in 2014. The representative explained that the nominee founded the company in 2014 and has been self-sponsored and a holder of a Subclass 457 visa in the nominated position. The representative explained that this application merely seeks to extend the current arrangement. The representative provided evidence of two new contracts secured in December 2015 and January 2016 and another ending in June 2016.
In response to an invitation to provide further information under s.359(2) the applicant provided further evidence including the following:
a.invoices relating to services provided by the applicant
b.a draft company tax return for 2017 showing income for the business of $43,221 and a total loss before income tax of $26,010
c.the nominee’s curriculum vitae and references, her IELTS test results and evidence of her qualifications
d.an employment contract between the applicant and the nominee stating the base salary would be $53,900 plus superannuation
e.a statutory declaration attested by the nominee stating that she has worked full-time as an advertising specialist since 18 September 2014
f.evidence that the nominee is the subject of an approved nomination to work in the position Advertising Specialist for another business, approved SBS Publisher's Internationale.

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 r.2.72(10)(AB).
Ms Lucena, the Director/owner of the business is in effect self-sponsoring. She has provided a copy of an employment contract signed on 13 August 2013, stating the base salary for the position is $53,900 plus superannuation, and remuneration is to be paid monthly. It also states she will work 38 hours per week with additional hours as required, will have 20 days paid annual leave and is entitled to 10 days sick leave.
At the hearing the Tribunal discussed with the applicant the requirements of r.2.72, the needs and nature of the business and its concerns regarding the business’ capacity to meet certain requirements, including the provisions regarding terms and conditions.
The applicant told the Tribunal that she has been the holder of a Subclass 457 visa, granted so that she could work as an Advertising Specialist for the business. She has applied for this nomination approval and visa application because she wants to remain in Australia and build a life here. Initially she had 3 or 4 clients but in the past year she has had only one client, apart from small jobs, such as with a local martial arts academy, for which she earned about $6000. The bulk of her work in the past 12 months has been with an advertising business Publisher’s Internationale. She has been looking after 3 of their clients, doing the media planning and negotiating for advertising on their behalf. The Tribunal asked if this has been on a contractual basis. The applicant showed the Tribunal a contract between her business and Publisher’s Internationale however the Tribunal noted that the contract expired in March 2017. The Tribunal asked if she (that is, Ms Lucena) is now in an employer/employee relationship with Publisher’s Internationale. She admitted that Publisher's Internationale has in fact sponsored her and she is now the subject of an approved nomination, dated 25 August 2017, to work in the nominated occupation for that business. When asked why she is pursuing this nomination application, given she is already the subject of an approved nomination, the applicant indicated that ideally she would prefer to run her own business because she can pursue projects with other clients. She admitted however that the bulk of her work has been with Publisher's Internationale although claimed that this was because she became despondent after the Department refused the nomination application and she lost the incentive to pursue her own clients. She has been working for Publisher's Internationale for about 30 hours per week at $28 per hour. She indicated that, while she had previously worked for Publisher's Internationale on the basis of the applicant business’ contract with Publisher's Internationale, Publisher's Internationale has for the last 2-3 months been paying her and withholding PAYG tax on her behalf. This appears to be since around the time that Publisher's Internationale’s nomination application was approved. She admitted that the business currently has no other contracts and that her income is essentially from the Publisher's Internationale employment. She indicated that she had paid for Publisher’s Internationale nomination application fee, and her own Subclass 457 visa application fee. The Tribunal raised its concern that Ms Lucena paid for Publisher’s Internationale’s nomination application because this was in contravention of legislative requirements.
The Tribunal noted that the business’ Profit and Loss Statement for the 2017 financial year records that the income received by the business was only $43,221. It noted that while the business has declared that wages of $53,900 have been paid by the business to Ms Lucena, it now has a debt of $26,010. It also noted from the bank statements provided that the business has not been paying the nominee on a monthly basis as required by the contract and that while salary payments overall might amount to the base salary by the end of the financial year, it appears this has only been achieved by the business going into debt. The Tribunal asked about the business’ debt, in particular whether Ms Lucena was carrying the debt personally. The applicant was unable to answer the question but indicated it might have been a tax debt owed to ATO. The Tribunal raised its concern that it appears the business is not in a position to pay the nominee in accordance with the terms and conditions set out in the contract. She argued that, while she had lost her incentive to work when the Department refused to approve the nomination, she is currently pursuing work for the business and has a few prospective clients. She admitted that this requires her to work long hours including on Sundays whereas her work for Publisher's Internationale is up to only 40 hours per week.
The Tribunal agreed to give the applicant further time to provide evidence that the terms and conditions of employment for Ms Lucena will be no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident for performing equivalent work. The Tribunal was particularly interested to see the lodged tax returns for the business and the nominee, bank and superannuation statements and further evidence regarding the business’ debt of $26,010 and its capacity to pay the nominee in accordance with the employment contract.
After the hearing the applicant provided a written statement in which Ms Lucena clarified that she had not personally paid for Publisher’s Internationale’s nomination application; it was her company who paid for the Subclass 457 visa nomination, and that she paid for the lodgement of her own visa application. She provided copies of receipts regarding those applications. It appears to the Tribunal that Publisher's Internationale paid for its own nomination application. Ms Lucena also asserted that she has made a significant financial investment and a contribution to Australia’s advertising industry. She indicated that over the last three months she has been offered three opportunities from three different companies but she chose not to pursue those until she has clarified her circumstances. She indicated that she wishes to remain in Australia to purchase a house and a car, to employ people to work for her company and that ultimately she will pay more taxes. She would like to continue working in advertising and she wishes to return to tertiary studies but needs to clarify her situation. When she has studied for a Masters to upgrade her skills she wants to grow her business. She has the option of her boyfriend sponsoring her but she wishes to pursue her Subclass 457 visa because she believes she meets the requirements.
The applicant provided a copy of the business’ bank account statement indicating as at 23 February 2018 the account has funds of $75.70. She also provided a Business Transaction Account statement indicating that as at 31 December 2017 the business had $299 credit. Ms Lucena’s personal bank account has a balance of $374.46. She also provided her own notices of assessment for the 2015, 2016 and 2017 financial years. Her taxable income in 2017 was $51,864.
The applicant also provided the draft business’ tax returns for the 2015 and 2016 financial years, indicating that in 2016 the business’ total income was $94,320. These however were not view activity statements from ATO’s website and were annotated Sensitive (when completed).
The applicant provided evidence that the business has negotiated with ATO to pay outstanding taxes by instalment. A document provided from ATO’s online service indicates the business currently owes tax of $21,044.
The applicant provided evidence that superannuation has been paid for Ms Lucena in the amount of $14,898.
The applicant also provided evidence that Publisher’s Internationale used its own credit card to pay for its nomination application and Ms Lucena paid for the lodgement of the Subclass 457 visa application.
Assessment of the evidence
There is no evidence before the Tribunal to indicate that the terms and conditions for the occupation are provided by an enterprise agreement under the Fair Work Act 2009. Nor is there any evidence that there is an Australian citizen or Australian permanent resident performing equivalent work at the same location as the nominee. The applicant has provided a copy of an employment contract between the business and Ms Lucena indicating a base salary of $53,900. It also records that the nominee is entitled to 4 weeks paid annual leave and 10 days sick leave per year.
When making the nomination application the applicant provided a sample of a job advertisement for Media Advertising and Marketing Specialists indicating salaries between $50,000 $65,000 per year. The Tribunal has also considered information from which indicates that a person in the nominated occupation can expect to be paid on average $1230 per week (that is $63,960). Another source, records that a similar occupation, Marketing Specialist, based in Sydney can expect to be paid between $52,390 and $87,505. The Tribunal also notes that the Publishers Internationale nomination application approved is on the basis of a base salary of $54,000. While the agreed base salary in this case appears to be somewhat lower than the average indicated in the Tribunal accepts that the nominated base salary of $53,900 may fall within the range that can be expected for the relevant Australian equivalent.
The Tribunal’s concern in this case is that the business does not have the capacity to pay the nominated base salary. The business is currently in debt to ATO in the amount of $21,044. The Tribunal notes that the business’ income in the 2017 financial year was only $43,221. It also notes that the business has very little credit, less than $500, in its bank accounts. While the applicant’s Profit and Loss Statement records that the nominee was paid wages of $53,900 last financial year, the Tribunal is concerned that in order to do this the business was not repaying its debt to ATO. The Tribunal is of the view that this arrangement is not viable in the foreseeable future, particularly given that the applicants main client is Publisher’s Internationale for whom the nominee is now in an employment relationship, given that she is the subject of an approved nomination to work in the equivalent position for Publishers Internationale. While the applicant has expressed a desire to continue running her own business and claims that she has three prospective clients, the Tribunal has not seen sufficient evidence to be satisfied the business will operate at a profit in the foreseeable future. The Tribunal is concerned that the business will not be able to provide to the nominee the terms and conditions set out in the contract in the foreseeable future. This raises serious concerns that the nominee’s earnings will be less favourable than those of an Australian citizen or an Australian permanent resident performing equivalent work at the same location.
For these reasons the requirements of r.2.72(10)(c) are not met.
The Tribunal also notes that r.2.72(10)(cc) requires that the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028. It specifies the TSMIT is $53,900. 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. The evidence indicates that the base rate of pay in this case is $53,900, that is, the same as the TSMIT. If the nominee’s base rate of pay is equal to the TSMIT, as in this case, the Tribunal has difficulty in seeing how r.2.72(10)(cc) can be satisfied. However as the Tribunal has found that the applicant does not meet r.2.72(10)(c) it is not necessary to make findings as to whether r.2.72(10)(cc) is met.

For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

The Tribunal affirms the decision not to approve the nomination.

Denise Connolly
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.

(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.

[2018] AATA 449

28 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction