J&C Blinds & Shutters Pty Ltd (Migration)
[2024] AATA 103
•17 January 2024
J&C Blinds & Shutters Pty Ltd (Migration) [2024] AATA 103 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: J & C Blinds & Shutters Pty Ltd
REPRESENTATIVE: Mr Chang Min Park
CASE NUMBER: 2309824
HOME AFFAIRS REFERENCE(S): BCC2018/970308
MEMBER:K. Chapman
DATE:17 January 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 17 January 2024 at 2:59pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – Federal Circuit and Family Court remittal – contract administrator – genuine position – nominee’s work in position while holding previous visa – tasks consistent with size and scope of business’s operations – labour market testing inconsistent with free trade agreement – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(f), 2.73CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 16 August 2018, to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (‘the Act’) and reg 2.72 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
The applicant, J & C Blinds & Shutters Pty Ltd, applied for approval on 28 February 2018. The applicant nominated Mr Eui Sik Kim (‘the nominee’), for a Subclass 457 visa, in the occupation of Contract Administrator. This occupation is coded number 511111 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant supplies window coverings, including blinds and shutters, to clients in the commercial building sector.
A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.
The delegate decided not to approve the nomination on the basis that the applicant failed to satisfy reg 2.72(10)(f), due to a lack of satisfaction that the position associated with the nominated occupation of Contract Administrator is genuine. On 6 September 2018, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.
On 22 July 2021, the Tribunal (differently constituted) affirmed the decision to refuse to approve the nomination: AAT reference 1826041. The applicant subsequently applied to the Federal Circuit and Family Court of Australia for Judicial review. On 6 June 2023, the Court made orders, by consent, granting relief to the applicant and remitting the matter to the Tribunal for reconsideration.
The applicant, through its Director Mr Chris Chai, appeared by video before the Tribunal (as presently constituted) on 21 December 2023, to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by video. The Tribunal also took evidence by video from the nominee, Mr Eui Sik Kim. The applicant was represented in relation to the review by their solicitor (‘the representative’). The representative was permitted to make submissions at the review hearing.
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 review is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). In addition, for nominations made from 23 November 2013, s 140GBA must be met.
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 reg 2.73.
The applicant lodged their application for nomination identifying the occupation of Contract Administrator (ANZSCO 511111) to be performed by Mr Eui Sik Kim, who is an applicant for a Subclass 457 visa. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form identifying Underwood, Queensland as the location where the occupation will be carried out, was accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s 245AR(1) of the Act. Further, the Tribunal is satisfied that the applicant is a Standard Business Sponsor and the nomination identifies the six digit ANZSCO code for an occupation contained in a legislative instrument as an approved occupation for the purpose of the Subclass 457 visa.
For these reasons the requirements of reg 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 submitted a copy of their Sponsorship Approval Notice from the Department indicating they are an approved Standard Business Sponsor for the period 16 August 2023 to 16 August 2028.
For these reasons the requirements of reg 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.
Having regard to the application for nomination and supporting documentary evidence, the Tribunal is satisfied that the applicant identified Mr Eui Sik Kim as the visa applicant who will work in the nominated occupation.
For these reasons the requirements of reg 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.
As the nominee is not presently the holder of a Subclass 457 visa, the requirements of reg 2.72(6), (7A) and (10)(g) do not apply.
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; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds that the applicant has identified the occupation of Contract Administrator (ANZSCO 511111) and Underwood, Queensland as the location where it will be carried out.
For these reasons the requirements of reg 2.72(8A) are met.
Certification relating to conduct under s 245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.
The Tribunal is satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s 245AR(1) of the Act.
For these reasons the requirements of reg 2.72(8B) 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 regs 1.13A and 1.13B.
There is no evidence of adverse information before the Tribunal, about the applicant or a person associated with the applicant.
For these reasons the requirements of reg 2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa), as it applies in this review, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 18/004 and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances, this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: reg 2.72(10)(b).
The applicant nominated the nominee in the occupation of Contract Administrator (ANZSCO Code 511111). This occupation has attached to it the following inapplicability condition (or ‘caveat’) in accordance with instrument IMMI 18/004:
· Item 1 – the position does not require a minimum of 2 years’ relevant work experience.
The applicant’s business supplies window coverings, including blinds and shutters, to clients in the commercial building sector. At the review hearing, the Tribunal canvassed with Mr Chai the requirements for the Contract Manager position. He informed the Tribunal that the nominee had more than two years’ relevant experience, obtained from offshore employment with the Hyundai Construction company, prior to being employed by the applicant. Furthermore, the nominee was previously successfully nominated for a Subclass 457 visa, in the nominated occupation, by the applicant in 2015. Thus, he had worked for the applicant for approximately 18 months at the time the present application for nomination was made. It is, therefore, apparent to the Tribunal that the Contract Manager position requires a minimum of two years’ relevant work experience.
As will be outlined in further detail below, the Tribunal is satisfied that the nominated position is consistent with the scale and nature of the applicant’s commercial operations. Additionally, the Tribunal is satisfied that the position associated with the nominated occupation is in fact that of a Contract Administrator (ANZSCO Code 511111) and that it is genuine.
For the above reasons, the Tribunal is satisfied that the nominated occupation is not affected by the inapplicability condition, the requirements of reg 2.72(10)(aa) are met and the requirements of reg 2.72(10)(b) are not applicable.
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: reg 2.57(3A). ‘Earnings’ is defined in reg 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: reg 2.72(10AA). It is common ground that there are no Australian citizens or permanent residents performing equivalent work at the same location as the nominee.
There is no evidence before the Tribunal to indicate that there is a fair work instrument, state industrial instrument or transitional instrument that would apply to an Australian citizen or permanent resident performing the role of a Contract Administrator. Accordingly, the applicant can rely on the examples of ‘relevant information’ listed in the instrument, such as remuneration surveys and job vacancy advertisements, to determine what would be payable to an Australian citizen or permanent resident performing an equivalent role.
The nominee’s terms and conditions of employment are evidenced in his submitted employment contract, as varied on 28 November 2023. He receives a base annual salary of $82,000 with additional superannuation payments. Having regard to the submitted market salary information, the Tribunal is satisfied that the terms and conditions of employment for the nominee are no less favourable than those which would be provided to an Australian employee performing equivalent work in the same workplace.
Accordingly, the Tribunal finds 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 these reasons the requirements of reg 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 relevant Ministerial instrument.
As the base rate of pay of the nominee is $82,000 per annum, it is greater than the applicable TSMIT. The Tribunal is therefore satisfied that reg 2.72(10)(cc) is met.
Certification under reg 2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;
·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 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 the relevant instrument; 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 the relevant instrument.
The applicant lawfully operates a business within Australia and the Tribunal is satisfied that it truthfully made the necessary certifications in the application for nomination.
For these reasons the requirements of reg 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. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
At the review hearing, Mr Chai explained the context of the nominated fulltime position, its duties and significance to the operations of the applicant. It is apparent that the applicant operates a successful business, supplying window coverings to clients in the commercial building sector. In particular, the applicant has Meriton as a flagship client. Mr Chai described the tasks of the nominated position in a manner consistent with the ANZSCO description for the nominated occupation of Contract Administrator. The nominee, Mr Eui Sik Kim, also provided consistent evidence, regarding his duties, to the Tribunal at the review hearing.
The submitted taxation records and financial reports demonstrate the applicant is commercially successful. For example, its annual turnover has now reached $3 million. Indeed, the applicant’s turnover has consistently exceeded $1 million in recent reporting years. Mr Chai informed the Tribunal of the applicant’s successful acquisition of commercial clients in the building industry and its strong financial performance. The Tribunal accepts his evidence.
On balance, the Tribunal is satisfied that the nominee will perform the fulltime role of a Contract Administrator as defined in the ANZSCO. Following careful consideration of the evidence, the Tribunal is satisfied the nominee’s position is consistent with the size and scope of the applicant’s business, and that he will be legitimately employed to fill a position that cannot be filled from the domestic labour market. Of note, the Tribunal accepts the applicant requires the services of the nominee, so that his extensive contract administration experience can assist the business to further grow. Indeed, the nominee has proven himself in the nominated occupation, following the grant of a Subclass 457 visa in 2015. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Contract Administrator (ANZSCO 511111) is genuine.
Therefore, the requirements of reg 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 the relevant instrument.
The applicant submitted a copy of the employment contract dated 3 November 2017, and the variation document dated 28 November 2023, with respect to the nominee. The Tribunal is satisfied that the nominee is employed pursuant to the terms on foot since variation.
For these reasons the requirements of reg 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): reg 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.
The applicant is not a party to a work agreement, and for this reason the requirements of reg 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 ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
The Tribunal notes that the nominee is a citizen of the Republic of Korea. In the circumstances of this matter, pursuant to instrument LIN 21/075, labour market testing is inconsistent with the Korea-Australia Free Trade Agreement (KAFTA).
For these reasons, the labour market testing requirements in s 140GBA are not applicable.
Accordingly, 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.
K. Chapman
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the person has listed on the nomination a person described in paragraph (6) (a); and
(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii) if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv) unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i) the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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