ISTUDYOZ PTY LTD (Migration)

ISTUDYOZ PTY LTD (Migration) [2018] AATA 1891 (27 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ISTUDYOZ PTY LTD
CASE NUMBER:  1614737
DIBP REFERENCE(S):  BCC2016/1594268
MEMBER:Denise Connolly
DATE:27 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 27 March 2018 at 4:32pm

CATCHWORDS
Migration – Nomination refusal – Technical Sales Representative – ANZSCO 225499 – Genuine need for the position – Not an approved Standard business sponsor – Financial capacity of the nominating business to pay the nominee's salary – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r 2.72
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 30 August 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 13 October 2015. 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 2.72(10)(f) because the delegate was not satisfied the position associated with the nominated occupation is genuine.
Mr Khampon Tonglai, Director of Istudyoz Pty Ltd, (the applicant) appeared before the Tribunal on 23 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Thai languages.
The applicant was represented in relation to the review by its registered migration agent who was also present at the hearing.
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 is an education agent which claims to promote Australian education in the South Asia region. It claims to provide education consulting, study coaching, and migration and life services to Asian students. It claims to offer language training, international cooperation programs, foundation courses, summer camps, consultation, study planning, enrolment and visa application support, and pre-departure counselling. It claims to need the position of Technical Sales Representative (nec) (ANZSCO 225499). The nominee is Miss Darunee Ondam.
At the time of application the applicant provided to the Department a copy of an offer of employment dated 28 April 2016 indicating that the nominee would be paid a base salary of $56,000 per year and 9.5% superannuation, to work a 38 hour week plus reasonable additional hours. The position description is included in the contract as follows:
a.acquiring and updating knowledge of the courses, and other educational products and services offered by the education providers who have appointed the applicant as their agent including their admission standards, documents required, and the application methods
b.engaging the customers on behalf of the business either on the business premises or through telephone, emails or other electronic means to establish sales opportunities
c.assessing students’ needs and recommending suitable courses
d.advising students about Australian education systems, visa requirements and life and work in Australia
e.assisting students to collect study records and other documents, completing application forms for submission to education providers for assessment and an offer of a place for their programs
f.receiving fees on behalf of education providers and issuing invoices
g.reporting to sales management on sales made and the marketability of educational goods and services
h.following up with clients to ensure satisfaction with goods and services purchased, and resolving any problems arising
i.preparing sales reports and maintaining and submitting records of business expenses incurred.
The applicant provided to the Department a Genuineness of the Position Report prepared by Zeolla Solutions. It includes an organisational chart which indicates that the business employs a director, two agent counsellors, a sales representative who holds a “SC 457 Bridging” visa and another sales representative, the nominee. It is asserted that the business needs the nominated position because it is expecting an increase in demand and competition. It is asserted the position is imperative for the sustainability of the company’s activities which are essentially selling education to Asian students. The submission explains that the nominated position is vacant however a full-time position of Technical Sales Representative is necessary to fine tune advertising, sales operations and business workflow. Also the business intends to expand into other locations and serve other markets. It is asserted that the position will be required to routinely perform the full extent of the duties of a Technical Sales Representative to assist the director and senior management in performing essential sales and advertising activities. The position will allow the director to focus his energies on other important business activities apart from marketing the business and it will give the sales operations the attention they deserve. It is asserted that the position will perform a number of functions, from managing listings to customer requirements and presenting appropriately to make a sale, maintaining and developing relationships with existing customers, responding to email and phone enquiries, acting as a contact between the company and its existing or potential market, negotiating the terms of an agreement and closing the sale, gathering market and customer information, representing the applicant at trade exhibitions, events and demonstrations, advising on forthcoming special promotions, creating detailed proposal documents, recording sales, entering figures into a computer system, reviewing sales performance, gaining a clear understanding of customers’ requirements, making accurate, rapid cost calculations and providing customers with quotations, feeding future buying trends back to employers, attending meetings and sharing best practice with colleagues. The nominee will spend about 25% of her time directing the development and implementation of sales strategies and setting sales targets in order to maximise the organisation’s sales and customer loyalty. About 30% of her time will be spent directing the development and implementation of strategies to promote the organisation’s goods and services to as many people as possible. She will spend about 25% of her time directing the development and implementation of strategies to generate increased consumption of the organisation’s goods and services through the creation and reinforcement of brand image or brand loyalty. She will then spend about 20% of her time directing the development and implementation of strategies to build and maintain the organisation’s image and reputation with its customers, investors and the wider public. It is asserted that these duties are currently taken up by the director and senior management and since they have the oversight of the entire company there is a great demand for the position to support its operation and growth. The employee will require previous work experience as a Technical Sales Representative, experience in customer service management, extensive industry knowledge, computer literacy, strong leadership, motivational and people skills and acute financial management skills.
The applicant provided a letter of support from Victory Institute of Vocational Education indicating that it has a solid partnership with the applicant.
Having considered the description in ANZSCO for the nominated occupation, the delegate noted that the duties listed to be performed by the nominee appeared to be consistent with the role. However when assessing the claimed duties in the context of all the other information provided, the delegate was not satisfied that the proposed tasks would be performed by the nominee on a regular basis. The delegate formed the view that the size and turnover of the business did not appear to warrant such a position on a full-time basis. She acknowledged that the business intended to expand into other locations and markets. However she formed the view that there was insufficient evidence to demonstrate these claims and she was not satisfied the position associated with the nominated occupation is genuine.
In response to a s.359(2) invitation, the applicant provided to the Tribunal further information including the following:
a.Business activity statements (BAS) from the Australian Taxation Office (ATO) indicating the following total sales:
i.$13,760 in the period April 2017 to June 2017
ii.$17,714 in the period January 2017 to March 2017
iii.$11,782 in the period October 2016 to December 2016
iv.$21,545 in the period July 2016 to September 2016.
b.Bank statements indicating a debit balance of $9429 as at 16 November 2017.
The Tribunal has considered the description of the nominated occupation from ANZSCO. While it is not bound by this description the Tribunal finds it to be a useful guide in its consideration of whether the position is genuinely that of a Technical Sales Representative (nec). The ANZSCO description is as follows:
UNIT GROUP 2254 TECHNICAL SALES REPRESENTATIVES

TECHNICAL SALES REPRESENTATIVES represent companies in selling a range of industrial, medical and pharmaceutical goods and services to industrial, business, professional and other establishments.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
ocompiling lists of prospective client businesses using directories and other sources
oacquiring and updating knowledge of employers' and competitors' goods and services, and market conditions
ovisiting regular and prospective client businesses to establish and act on selling opportunities
oassessing customers' needs and recommending and explaining goods and services to them
omonitoring customers' changing needs and competitor activity, and reporting these developments to sales management
oquoting and negotiating prices and credit terms, and completing contracts and recording orders
oarranging delivery of goods, installation of equipment and the provision of services
oreporting to sales management on sales made and the marketability of goods and services
ofollowing up with clients to ensure satisfaction with goods and services purchased, and resolving any problems arising
opreparing sales reports and maintaining and submitting records of business expenses incurred

Occupations:
225411 Sales Representative (Industrial Products)
225412 Sales Representative (Medical and Pharmaceutical Products)
225499 Technical Sales Representatives nec

225499 TECHNICAL SALES REPRESENTATIVES NEC

This occupation group covers Technical Sales Representatives not elsewhere classified.
Skill Level: 1
Occupations in this group include:
Sales Representative (Educational Products and Services)
This occupation is now the subject of caveats set out in the relevant instrument Migration (IMMI 17/060: Specification of Occupations – Subclass 457 visa) Instrument 2017, (IMMI 17/060) which deem certain occupations to be inapplicable in certain circumstances. The relevant items in this case are as follows: item 2 - the position has a nominated base salary of less than $65,000; and item 15 - the position is based in frontline retail setting, or it is based in a call centre and does not require a significant technical knowledge of products, or it predominantly involves selling educational courses to individual students.
At the hearing the Tribunal discussed with the applicant the relevant law and the concerns arising in this case. The following is a summary of the evidence provided to the Tribunal.
Mr Tonglai explained that he is the Director and General Manager of the business. He claims that the business employs one student counsellor who works on a part-time basis, another student counsellor working on a full-time basis, a Sales Representative, and the nominee who works in the nominated position. He indicated that the student counsellors take the telephone calls from prospective clients and then the Sales Representatives take over and talk the client through the steps and the documentation required. The applicant indicated that the student counsellors attend to the phone, undertake general administration, give advice, prepare documentation and forward clients to the Sales Representatives. The student counsellors are paid between $18 and $25 per hour. He indicated that the nominee is currently working in the nominated position on a part-time basis and is paid only $20 per hour. The Tribunal noted that her employment contract indicates she will be paid $56,000 per annum which is more than $20 per hour. It asked why she is only receiving $20 per hour if she is currently working in the position. The applicant was unable to provide an explanation.
The Tribunal asked the applicant if he is paying the staff by bank transfer and withholding tax to forward to the ATO, noting that the various BAS provided do not include any PAYG tax withholdings or any salary, wages and other payments. He admitted that at times he pays the staff in cash and he does not withhold tax. The Tribunal raised its concern as to whether the applicant is running the business lawfully as this appears to be a contravention of Australia’s taxation laws. He had no further comment.
The Tribunal asked the applicant about the requirements for the position. He indicated that the position meets school representatives and participates in promotions. The nominee will also meet with students and gather the documentation that is required. The Tribunal asked the applicant to describe the main tasks of the position and the time spent on each task. He indicated that the position involves about 60% student contact. It is then involved in enrolment or placement of students. It undertakes some promotions such as putting up posters in schools and restaurants. The nominee has also talked to schools such as Victory and AAC. She has also been involved in recruiting new students, by telephone, social media and meetings. For example if a school has a conference she will attend and try to recruit students. She prepares documentation and submits it for the students. When asked about any of her other duties the applicant indicated there was nothing else. The Tribunal raised its concern that this was somewhat different to the description provided in the Genuineness of the Position Report provided to the Department. It asked the applicant if he had any explanation for why his oral evidence about the needs of the position is different to the written submissions. The applicant merely indicated that the business needs the position to give advice to students.
The applicant confirmed that the base salary for the position is $56,000. The Tribunal raised its concern that the position may be inapplicable in accordance with Item 2 of the instrument which indicates that positions for which the occupation is inapplicable includes those that have a nominated base salary of less than $65,000. The applicant had no comment. The Tribunal also raised its concern that the position may be inapplicable in accordance with Item 15 because a significant part of its time is involved in selling educational courses to individual students. The applicant had no comment.
The Tribunal discussed with the applicant its concern that the four BAS provided for the period July 2016 to June 2017 indicate that there has been no PAYG tax withheld. The Tribunal raised its concern as to whether the applicant is running the business lawfully as this appears to be a contravention of Australia’s taxation laws. He had no further comment. The Tribunal asked if he has been paying himself a salary. He indicated that he receives no personal income from the business. It asked how he covers his day-to-day living expenses. He indicated that he is also the Director of a Thai Massage business located near the education agent business and he is paid $35,000 per annum in that business.
The Tribunal noted that the ATO records indicate that the sales income for the business is very low, less than $100,000 per annum, and the bank statements provided indicates that the business may not have sufficient funds to employ the nominee. The Tribunal explained that this raises concerns for a number of reasons, including whether the business can in fact afford to employ the nominee on a full-time basis and provide the terms and conditions of employment that are described in the contract. It also raised its concern that the terms and conditions of employment may be less favourable than the terms and conditions of employment that would be provided to an Australian citizen or permanent resident performing equivalent work in the same location. The applicant indicated that the position is very important because the nominee finds new customers. He claims that the business needs 10 students a week to remain viable.
The Tribunal then discussed the other provisions of r.2.72. The applicant was unable to provide evidence that the business is currently an approved standard business sponsor. The Tribunal raised its concern that it appears there may be a number of requirements of r.2.72 that the applicant cannot meet. He acknowledged this and indicated he had no further evidence to give. He did not want the Tribunal to talk to the nominee.
Assessment of the evidence
Having considered all of the evidence before it, the Tribunal has several concerns as to whether the applicant meets all of the requirements of r.2.72. The Tribunal discussed those concerns with the applicant However in relation to a number of issues the applicant chose to make no comment. The Tribunal is satisfied the applicant has had a reasonable opportunity to address the concerns. The applicant has not indicated the business wishes to provide the Tribunal with any further information. On this basis it now proceeds to make its decision on the evidence before it.
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 applicant nominated the occupation Technical Sales Representative (nec) (ANZSCO 225499). Since the nomination application IMMI 17/060 has commenced. It provides that certain occupations are not applicable for the purposes of r.2.72(10)(aa). The instrument provides that the nominated occupation is affected by inapplicability conditions listed in Section 8: at Item 2 - the position has a nominated base salary of less than AUD$65,000; and Item 15 - the position is based in frontline retail setting, or it is based in a call centre and does not require a significant technical knowledge of products, or it predominantly involves selling educational courses to individual students. In this case the nominated base salary is $56,000. There is a contract of employment confirming this is the base salary. The Tribunal discussed this concern with the applicant at the hearing. The applicant did not seek to provide further evidence indicating there was any intention to change the base salary.
The Tribunal is satisfied that the base salary for the nominated position is AUD$56,000. The Tribunal is therefore satisfied that the nominated occupation of Technical Sales Representative (nec) in this case is inapplicable due to its base salary being less than AUD$65,000. The Tribunal finds therefore that the requirements of r.2.72(10)(aa) are not met.
Having found that one of the applicable requirements for approval is not met, it is not necessary for the Tribunal to consider the other requirements in r.2.72.
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.
(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 1891

27 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness