JM GOLDEN CARE PTY LTD (Migration)

JM GOLDEN CARE PTY LTD (Migration) [2019] AATA 696 (4 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JM GOLDEN CARE PTY LTD
CASE NUMBER:  1603107
DIBP REFERENCE(S):  BCC2015/3906932
MEMBER:Karen Synon
DATE:4 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 04 January 2019 at 12:38pm

CATCHWORDS
MIGRATION – nomination of an occupation (employer nomination) – position of Disability Support Officer – standard business sponsorship expired – party to a work agreement – genuine position – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140GB, 359, 360, 362B, 379A
Migration Regulations 1994, rr 2.27, 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 8 March 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 15 December 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 that the applicant did not satisfy 2.27(f) because she was no satisfied that the nominated position was genuine.
The applicant was represented in relation to the review by its registered migration agent.
On 30 October 2017 the applicant was invited to a Callover on 13 November 2017. The applicant was advised that the purpose of the Callover was to establish if the case was ready to be listed for a hearing. The applicant did not attend the Callover however his representative did attend on his behalf. At the conclusion of the Callover the applicant’s representative was handed a document titled ‘Guide to Relevant Information – R 2.72 Nomination’ which outlined all of the evidence that would be required for the Tribunal to make a positive decision in this case. Relevantly this document stated:
The Tribunal requires updated information to be satisfied that at the time of the Tribunal’s decision the review applicant meets the criteria in r.2.72 of the Migration Regulations.
This information can include:
·Information showing that the company is currently an approved standard business sponsor or a party to a work agreement[1]
[1] Tribunal’s emphasis.
·Name of the person who will work in the nominated occupation (the nominee), and the names of any family members included in the nomination.
·Information regarding the visa status of the nominee, including whether the nominee is a sc457 visa holder or not, and if so whether the nominee has demonstrates that he/she has the skills necessary to perform the nominated occupation ( if required by the Minister) and they meet the requirements in r.2.72(7A). Information about the English language ability of the nominee, if applicable for the purposes of r.2.72(10)(g).
·Information as to the ANZSCO 6 digit code relevant to the nominated occupation
·Information showing the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in the applicable legislative instrument or the name of the occupation and corresponding 6 digit code specified in the work agreement
·Information to demonstrate that the terms and conditions of employment of the nominee will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location. Such as
oInformation about the terms and conditions of employment currently applying to or proposed for the nominated role, including term of employment, together with supporting documentation,
oif there is an Australian employee performing equivalent work at the same location, information regarding the Australian employees terms and conditions of employment and any supporting documentation
oif there is no Australian employee performing equivalent work at the same location, information such as any applicable awards, agreement or other evidence of the market rate for the same type of position, including salary surveys, advertisements, etc. (see IMMI 09/113)
·Information about any relevant certifications for the purposes of r.2.72(10)(e), if not previously provided, or if relevant information has changed. These certifications relate to the tasks of the position, the lawful operation of the business and the position in the business, the qualifications and experience of the nominee.
·Information to demonstrate that the position associated with the nominated occupation is genuine. This may include -
oInformation regarding the current duties and responsibilities for the position associated with the nominated occupation.
oInformation regarding the type of business, the establishment of the business, the size of the business and current organisational structure, and reporting lines (if any)
oInformation regarding the current financial circumstances of the business
·Information to meet the requirement in r.2.72(10)(h), specifically any information pertaining to the employment relationship between the nominee and the employer, including any information regarding any current contract of employment
·Information to demonstrate that the base rate of pay, under the terms and conditions of employment mentioned in r.2.72(10)(c), that are or would be provided to an Australian citizen or permanent resident, will be greater than the temporary skilled migration income threshold specified in the relevant instrument in writing ($53,900, as specified in IMMI 13/028) (r.2.72(10)(cc)); OR information to demonstrate that the requirements of r.2.72(10)(A) are met such that the requirements of r.2.72(10)(cc) may be disregarded.
On 14 November 2017 the Tribunal wrote to the applicant in accordance with s.359(2) of the Act, inviting the following information in writing:
Information which demonstrates that the nomination meets ALL of the requirements of Regulation 2.27. This includes but is not limited to the requirement(s) which the Department’s delegate found was not satisfied.
This information was invited by 28 November 2017. In the invitation letter the Tribunal advised that it the “must consider whether JM GOLDEN CARE PTY LTD meets all the relevant criteria in regulation 2.72 at the time the Tribunal makes a decision. The Tribunal included a copy of regulation 2.72 which details all of the criteria the review applicant has to meet to have the nomination approved. On 27 November 2017 an extension of time in which to respond to the Tribunal’s invitation was requested and granted until 11 December 2017. On 11 December 2017 a submission regarding the genuineness of the position was received along with a range of documents however not all of the criteria in r.2.72 were addressed in the response.
On 19 December 2017 Mr Zi Meng Ji on behalf of the review applicant, JM Golden Care Pty Ltd (Golden Care) was invited to appear before the Tribunal to give evidence and present arguments on 21 February 2018. This was to be held as a combined hearing with the related 457 visa refusal of Ms Parminder Singh.
The review applicant did not appear at the time and place scheduled although his representative did appear at the hearing which proceeded in respect of the related visa applicant only. On 26 February 2018, when the review applicant had made no contact with the Tribunal to explain his non-appearance, the Tribunal dismissed the application for review stating:
The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 21 February 2018. The invitation stated that if JM Golden Care Pty Ltd did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were sent to the review applicant about the hearing. The review applicant’s representative presented at the Tribunal offices at the time of the scheduled hearing and communicated that the review applicant was too busy to attend.
No satisfactory reason for the non-appearance has been given. In the 3 full business days that have passed since then, the review applicant has not contacted the Tribunal to communicate any reason why he did not attend the scheduled hearing.
In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
The review applicant was advised that he could apply to the Tribunal for reinstatement of the application by 13 March 2018 setting out why he failed to appear at the hearing and provide any other information he wanted the Tribunal to take into consideration when deciding whether to reinstate the application.
On 12 March 2018 the review applicant applied for reinstatement of the application relevantly stating that he “was unable to leave [his] Supported Residential Service (SRS) because of health and safety concern of my residents due to a medical emergency and absence of staff at the centre”.
On 13 March 2018 the Tribunal wrote to the review applicant requesting further supported evidence regarding the claim that Mr Zi Meng Ji, on behalf of the review applicant, could not leave his business due to a medical emergency and an explanation as to why this information was not communicated to the Tribunal at or before the hearing.
In response on 14 March 2018 Mr Zi Meng Ji, on behalf of the review applicant relevantly wrote:
As mentioned in my previous letter, I explained the reason for not appearing at the hearing on 21^st February 2018. I was not able to leave my Mayfair Lodge Supported Residential Services (SRS) because of health and safety concern of my residents due to a medical emergency and absence of staff at the centre. Generally my experienced and trained staff look after the residents. On that very day of hearing 21^st Feb 2018 my DSO and PCA called sick in the morning that is responsible for looking after the residents and one of the residents was not feeling well and leaving resident in that condition was not appropriate. In this sort of business where life is involved we can’t take chances. I asked for medical certificate from my staff but they haven’t been to the doctor and their explanation is that they took Panadol to get better.
On 14 March 2018 the Tribunal determined to reinstate the application for review relevantly recording in its reinstatement decision:
The review applicant was invited under s.360 of the Migration Act 1958 (the Act) to appear before the Tribunal on 21 February 2018 but did not do so. The Tribunal dismissed the application under s.362B(1A)(b) of the Act and the review applicant applied for reinstatement of the application within the prescribed period. The applicant stated he did not attend the hearing due to a “medical emergency” and the absence of staff at Mayfair Lodge. The Tribunal requested evidence of this medical emergency but none has been provided other than to state that 2 staff “called in sick” and they did not get medical certificates. The Tribunal does not consider this to be an adequate explanation but, on balance, considers it appropriate on this occasion, to reinstate the application.
On 15 March 2018 the Tribunal advised the review applicant via its authorised representative and registered migration agent that the application for review had been reinstated and relevantly advised that:
This means that the Member will now move to a decision on the basis of the information before it. If you wish to provide any additional evidence you should do so by 5pm on Tuesday 20 March.
The Tribunal notes that Mr Zi Meng Ji stated in his correspondence of 12 and 14 March 2018 that “I request you to please reinstate the applicant for review and inform me accordingly so that I can personally appear at the hearing”. While the Tribunal considers that it discharged its obligation to invite the review applicant to a hearing to give evidence and arguments when it invited it to appear before it on 21 February 2018 and correctly advised the review applicant that it would proceed to a decision on the basis of the information before it in its correspondence of 15 March 2018, having received no additional evidence from the review applicant in the lengthy period since March 2018, it determined to schedule a hearing in order to raise with the applicant the fact that it appeared not to be a standard business sponsor.
Accordingly on 6 December 2018 the applicant as invited to a hearing on 3 January 2019. In response on 13 December 2018 the Tribunal was advised that the applicant would attend the hearing.
In the absence of any further evidence or submissions being received since the Tribunal reinstatement decision and despite the Tribunal inviting this, on 2 January 2019 the Tribunal contacted the applicant, via his representative and advised:
Please be advised that any additional submissions and/or evidence regarding the satisfaction of ALL the requirements of regulation 2.72 should be provided by close of business today as the Member will be proceeding to a decision immediately after the hearing.
Later on 2 January 2019 a submission on the number of documents were received. The submission, in summary, contends:
·An application must satisfy the prescribed criteria set out in Regulation 2.72 in order to be approved;
·JM Golden Care Pty Ltd is a privately owned supported Residential Service (SRS) which operates 2 separately located facilities within the one corporate entity with the same ABN. Mayfair Lodge is located in Dandenong and Alma House is located in St Kilda. The SRS provides accommodation and support services to people who are not able to live unassisted, for example; people who are frail; have a disability or mental illness and who are not capable of living in the mainstream community without the support of professionals and personal carers. Alma House has 39 residents of which 2 are prisoners; 10 are drug addicts, 6 are disabled and 21 are aged.
·It is proposed the applicant will work at Alma House and perform the following duties of a Disability Support Officer:
o   dealing with residents and assessing their needs through interview
o   document interviewing documenting interview and assessment as required by Alma House SRS process;
o   based on assessment of each resident, plan develop and implement support programs be they in areas of education, money management, social services or other;
o   supervising offenders/prisoners on probation and parole;
o   assisting young people so social, emotional and financial problems especially persons involved in illicit drug use and monitoring their progress;
o   supporting residents by accessing external sources of support solve medical, emotional and financial problems; and When required and in course in accordance with assessments and programs, refer residents to external agencies able to provide help. This will range of a considerable number of agency options and will cater to the needs of each individual in care.
·The Nominated Role of Disability Services Officer is mainly concerned with creating improvement in the residents ability to live more fulfilling and independent lives through assessing their needs and formulation and implementing plans for support programs in the areas of education, money management, social services and others. As part of the services the SARS provides includes helping residents to overcome some of the impediments be they social, physical, intellectual or emotional, the role of the Disabilities Services Officer responsible for delivering this help is integral to the services provided by this SRS business and therefore clearly fits into the scope of this business.
·Alma House has capacity for 39 residents and effectively operates at full capacity therefore the role of the DSO, who needs to work with each resident on a daily basis, can only spend an hour with each resident per week. This is obviously insufficient to make the necessary difference in that person’s life and given the necessary contact required with each resident on the basis of workload the nominated full-time role clearly fits into the scale of the business. The business requires at least two full-time DSO roles in order to fulfil its obligations to its residents. Given the financial scale and need for the continued DSO expertise and skills in the face of the workload of the company, the nominated role clearly fits the scale of the business. The business owner considers the position of full-time DSO as critical to ensuring the business continues to maintain and enhance its reputation as a reliable and high quality SARS provider. At present due to the fact that instead of two full-time DSOs, Alma House only has two part-time DSOs, the other staff employed by the business are covering aspects of the DSO role by working unsustainably excessive overtime hours. This means that staff working very long hours are becoming fatigued and if this situation is not resolved soon there is a possibility of them making mistakes, not fulfilling their roles correctly and therefore Alma House as an employer could breach OHS rules in relation to reasonable hours of work.
The following documents were also provided:
·An organisational chart which indicates that 2 Disability Services Officers are employed at Mayfair Lodge;
·A Contract of Employment dated 10 December 2017 outlining the other terms and conditions of the proposed 457 visa applicant’s employment and which indicates a salary of $54,000 per annum plus superannuation; and
·A Position Description.
Mr Zhi Meng Ji, on behalf of the review applicant, JM Golden Care Pty Ltd appeared before the Tribunal on 3 January 2019.
The applicant was represented in relation to the review by its registered migration agent who was present throughout 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).
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.
Despite the Tribunal inviting the review applicant in accordance with s.359(2) to provide information that it “meets all the requirements of the criteria in regulation 2.72…at the time of the Tribunal’s decision”, no evidence has been provided that the nominator is a standard business sponsor or a party to a work agreement. The Tribunal discussed this issue with Mr Zhi Meng Ji at the hearing and noted that the onus is on the review applicant to prove his case which, in this instance, requires it to demonstrate that it meets all the relevant criteria in r.2.72.

During the second scheduled hearing the Tribunal provided information in accordance with the provisions of s.359AA explaining that in conducting the review, the Tribunal is required by the Migration Act to invite him to comment on respond to certain information the Tribunal considers would, subject to his comments response, be the reason or part of the reason for affirming the decision under review. The Tribunal advised it had not made up its mind about the information and that after the Tribunal had provided this information it would invite his comments or response in one of 3 ways being: that he could respond immediately; he could seek an adjournment of the hearing to consider his response and, if he so chooses, consult with his representative before responding; or he could choose to respond after the hearing in writing. The particulars of the information are:
·Department records contained on its Integrated Client Services Environment database (ICSE) suggest that JM Golden Care Pty Ltd’s Standard Business Sponsorship expired on 19 December 2017.
The applicant was advised that this information is relevant to the review because Regulation 2.72 (4) requires the person making a nomination is either a standard business sponsor or a party to a work agreement (other than the Minister) and that if the Tribunal relies on this information in making a decision we may find that JM Golden Care Pty Ltd does not satisfy Regulation 2.72(4) and therefore, consequently, the Tribunal would have no alternative but to affirm the decision under review.
The review applicant requested an adjournment to discuss with issue with his representative which was granted. Upon resumption Mr Ji said he did not know that the standard business sponsorship had expired. In his explanation for why he did realise it had expired, Mr Ji said that he had 3 different representatives working on different cases and he had to phone another representative who checked and confirmed the SBS had expired. Mr Ji asked for some more time to lodge another SBS. The Tribunal declined to grant additional time noting that: the SBS had been expired for over a year; he had been representative by a registered migration agent throughout the review process; the Tribunal had clearly advised the review applicant on at least 3 occasions that to have the nomination approved required that evidence be provided that JM Golden Care Pty Ltd satisfied all of the requirements of Regulation 2.72; and finally that providing time to lodge another standard business sponsorship would not be sufficient as this must be determined by the department before the Tribunal could proceed to a decision. The applicant indicated that he understood and that he needed to talk with his representative(s) to determine what he should do next.
At the time of the Tribunal’s decision, there is no evidence before it that the review applicant is a standard business sponsor or a party to a work agreement.
For these reasons the requirements of r.2.72(4) are not met.
During the hearing the Tribunal also raised with the review applicant its concerns that the submissions provided were substantially out of date and that the BAS statements provided at the hearing in which the most recent (for the quarter April 2018 to June 2018) recorded only $53,000 of wages and other payments when the organisational chart provided recorded 4 full time and 5 part time staff (excluding him), which did not appear to be adequate to cover this staffing. In discussing this with Mr Ji, it became clear that the organisational chart provided the day before the hearing was substantially out of date and no longer applicable. Mr Ji also said that the 2 people listed in this organisational chart as Disability Services Officers had been granted permanent ENS visas for these positions. The Tribunal noted that it maintained serious concerns about the genuineness of the nominated occupation given the substantially out of date evidence that had been provided and the fact that JM Golden Care Pty Ltd was therefore proposing to employ 3 full time Disability Services Officers when the organisational chart only lists 5 part time personal care attendants and that no evidence had been provided to address or satisfy the Tribunal as to why 3 Disability Services Officers were required in this relatively small SRS.
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.
Karen Synon
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.

[2019] AATA 696

4 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal