JOHNSON, BRADLEY SCOTT (Migration)

JOHNSON, BRADLEY SCOTT (Migration) [2021] AATA 1712 (15 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Johnson, Bradley Scott
CASE NUMBER:  1815030
HOME AFFAIRS REFERENCE(S):          BCC2018/957643
MEMBER:K. Chapman
DATE:15 April 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 15 April 2021 at 5:25pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Motor Mechanic – genuine position – nominee no longer employed – business not actively trading – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 3 May 2018 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, Mr Bradley Scott Johnson as a sole trader T/A ‘Performance Auto’s Nerang’ (also ‘the nominator’), applied for approval on 28 February 2018. The applicant nominated Mr Manpreet Singh (‘the nominee’) in the occupation of Motor Mechanic, which is coded as number 321211 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’).
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 failed to satisfy r.2.72(10)(f), due to a lack of satisfaction that the position associated with the nominated occupation of Motor Mechanic is genuine. On 23 May 2018, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with his application for review.
On 17 November 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting him to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response, the Tribunal received material including, but not limited to, written submissions, photographs, standard business sponsorship approval notice, IELTS results, Australian Business Register information, organisational chart, employment contract with job description, market salary information, Gumtree advertisement and taxation records. All material received has been duly considered by the Tribunal.
The applicant, Mr Bradley Scott Johnson, appeared by telephone before the Tribunal on 30 March 2021 to give evidence and present arguments. Mr Johnson consented to a combined review hearing in the matters of 1815030 (nomination of Mr Manpreet Singh regarding a Subclass 457 visa), 1820636 (nomination of Mr Kamaldeep Singh regarding a Subclass 187 visa) and 1822057 (nomination of Mr Yadvinder Singh regarding a Subclass 187 visa), as these matters all pertain to nominations made by him for nominees in the occupation of Motor Mechanic (ANZSCO Code 321211). The applicant was represented in relation to the review by his registered migration agent (‘the representative’).
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 applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The Review Hearing – 30 March 2021
During the review hearing, the Tribunal canvassed with Mr Johnson the requirements for the nominations to be approved. His oral evidence to the Tribunal may be summarised as follows. Mr Johnson outlined that the impact of COVID-19 in March 2020 saw his mechanical garage cease trading at that time. Its doors remain closed, however Mr Johnson aspires to reopen the garage in around 6 months time when he acquires sufficient funds to do so. Mr Johnson informed the Tribunal that he is presently working in security at a mining site on a Fly-In-Fly-Out (FIFO) basis. He does not want to continue this occupation for too long and hopes to reopen his mechanical garage.
The Tribunal canvassed Mr Johnson’s past history of employing staff. Mr Johnson outlined that Mr Yadvinder Singh initially commenced on a part time basis in 2016 and two other part time employees joined him. They were Mr Kamaldeep Singh (nominated for a Subclass 187 visa) and Mr Manpreet Singh (nominated for a Subclass 457 visa). All three individuals have been nominated by Mr Johnson. The Tribunal explored with Mr Johnson his current staffing arrangements. Mr Johnson confirmed that Mr Kamaldeep Singh was no longer employed in his business and had not worked for him since March 2020. Further, Mr Johnson advised that Mr Manpreet Singh no longer worked for him, having only ever worked ‘a couple of days’ part time. Additionally, Mr Johnson indicated that Mr Yadvinder Singh has not worked for him since 30 March 2020, however he aspires to re-employ him and maintains support for his nomination. Mr Johnson also noted that he had employed other individuals over his 30 years in business.
Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with Mr Johnson during the review hearing (with respect to matter 1820636):
·The nominee, Mr Kamaldeep Singh, recently withdrew his application for review in the Tribunal, matter number 1826048, in relation to the refusal of his Subclass 187 visa application made in association with your application for nomination. On 24 March 2021, the Tribunal accepted this withdrawal and therefore his matter has now been finally determined.
The Tribunal indicated that this information is relevant to the review as it tends to suggest that Mr Kamaldeep Singh will not be employed on a full-time basis in the position for at least 2 years and there is not a genuine need for Mr Johnson to employ a paid employee to work in the position under his direct control. The Tribunal advised that if it was to rely upon this information, it would be the reason or a part of the reason to affirm the decision not to approve the nomination.
Mr Johnson confirmed that he understood why the information is relevant to the review. He was offered additional time before commenting on or responding to the information, however he chose to respond immediately. Mr Johnson responded by indicating that he understands this nomination will not be successful. The Tribunal has carefully considered his response.
The Tribunal also canvassed with Mr Johnson the recent financial performance of his business. Mr Johnson explained that he ceased trading in March 2020 due to the impacts of COVID-19. He still pays the leasing and utility costs of his business premises through his income derived from security work in the mining sector. The Tribunal raised with Mr Johnson that he submitted various financial documents, including a Profit and Loss statement for Financial Year 2019 which indicates he suffered a $31,757.32 operating loss then. Further, the Tribunal raised with Mr Johnson that the submitted Profit and Loss statement for Financial Year 2020 indicates he suffered a $36,155 operating loss then. Additionally, the Tribunal raised with Mr Johnson that the submitted Business Activity Statement (BAS) for the period July to September 2020 indicates his business made sales of $24 and paid $0 in salary. The Tribunal discussed these matters with reference to Mr Johnson’s support for the nomination of Mr Yadvinder Singh.
The Tribunal raised with Mr Johnson that he submitted various organisational charts to it and the Department. The Tribunal raised with Mr Johnson that the high proportion of visa holders in this small business might tend to suggest there is not a genuine need for him to employ Mr Yadvinder Singh to work in the nominated position under his direct control.
During the review hearing, the Tribunal conferred with Mr Johnson and the representative regarding the existence of a certificate pursuant to s.375A of the Act. The Department file BCC2016/3823571 (at TRIM reference OPD 2016/164768) contains such a certificate dated 9 March 2021, which is signed by a delegate of the Minister and the Secretary. The certificate indicates that release of the relevant material would be contrary to the public interest because it would ‘disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods (OPD2016/164768)’. The Tribunal sent a copy of this certificate, a revoked certificate and the revocation document to Mr Johnson prior to the scheduled review hearing. The representative confirmed receipt of same. The Tribunal notes that the certificate is pertinent to review application matter 1820636.
The Tribunal invited Mr Johnson and the representative to make submissions on the validity of the s.375A certificate if they wished to do so, however neither did. The Tribunal advised it formed the view that the certificate is valid given public interest grounds are properly stated. Following careful consideration, the Tribunal decided not to release the material in full to Mr Johnson, but provided ‘the gist’ of the material to him using the procedure in s.359AA of the Act:
a.The Department file BCC2016/3823571 (at OPD2016/164768) contains information from the Australian Border Force alleging suspicious nomination applications made by Mr Johnson in relation to Mr Harjaib Singh (who obtained a Subclass 187 visa in the occupation of Motor Mechanic, whilst the business employee salary figures were low), Mr Yadvinder Singh (who obtained an initial Subclass 457 visa in 2013 through nomination by Fast Fab and Mechanical Pty Ltd, a sponsor of concern due to allegations of a cash for visa scheme), and Mr Kamaldeep Singh. In particular, the information indicates all three visa applicants reside in Brisbane which is 75km away from the employment location, they all have been identified by Queensland Transport and Main Roads as driving taxis, and all have an immigration history of concern.
The Tribunal advised Mr Johnson that the above information is relevant to the review as it tends to suggest that Mr Yadvinder Singh will not be employed on a full-time basis in the nominated position for at least 2 years and there is not a genuine need for Mr Johnson to employ a paid employee to work in the nominated position under his direct control. The Tribunal advised that if it was to rely upon this information, it would be the reason or a part of the reason to affirm the decision not to approve the nomination.
Mr Johnson confirmed that he understood why the information is relevant to the review. He was offered additional time before commenting on or responding to the information, however he chose to respond immediately. Mr Johnson replied that his other workers were part time, however Mr Yadvinder Singh was full time so he doesn’t understand there to be a problem. When asked by the Tribunal who is Mr Harjaib Singh, Mr Johnson indicated that ‘Harry’ was one of his first employees who wanted to do part time work. According to Mr Johnson, Mr Harjaib Singh ‘did a little bit of work then failed to turn up’. He remembers nominating him for a visa but maintained Mr Harjaib Singh only ever worked part time and then went on holiday to India and Mr Johnson never saw him again. Regarding the business ‘Fast Fab’, Mr Johnson initially advised that he didn’t know them, then later indicated he met the proprietor a couple of times before he went bust and moved back to Melbourne.
Mr Johnson maintained that all of his nomination applications are ‘above board’, adding that he tried to get them all part time work and didn’t initially understand the requirement for them to work full time in his business once the nominations were approved. He placed reliance in his representatives (from the firm Migration Guru). Mr Johnson contended that as Mr Yadvinder Singh held a Subclass 457 visa, he wanted to put him on as a proper employee. The Tribunal has carefully considered Mr Johnson’s evidence in response to the s.359AA invitation.
In the latter portion of the review hearing, the Tribunal raised with Mr Johnson that the evidence tended to suggest that his three pending nomination applications did not satisfy the legal criteria to be approved. In particular, the Tribunal raised with him that the submitted financial evidence, and his evidence that the business is not currently trading, tended to suggest the nomination of Mr Yadvinder Singh did not satisfy the legal criteria. Further, the Tribunal raised that the information raised pursuant to s.359AA of the Act tended to suggest that the nomination of Mr Yadvinder Singh lacked genuineness. The Tribunal invited Mr Johnson to comment, however he had no further information to provide.
The Tribunal invited the representative to make submissions and none were made, preferring to rely upon the written submissions. The representative then advised that Mr Johnson does not want to proceed with the present review application, matter 1815030 pertaining to the nomination of Mr Manpreet Singh. Nor does he want to proceed with matter 1820636 pertaining to the nomination of Mr Kamaldeep Singh. Mr Johnson advised that he agreed. The Tribunal requested that he provide written confirmation of this position and that if he did not it would proceed to decision on these matters. At the time of this decision, no written confirmation of the withdrawal of these matters has been received by the Tribunal. Accordingly, the Tribunal has determined them following careful regard to the evidence. Prior to the conclusion of the combined review hearing, Mr Johnson confirmed to the Tribunal that he had no further evidence to submit. For reference, the Tribunal records that Mr Johnson expressed support for his nomination of Mr Yadvinder Singh.
ANALYSIS
For completeness, the Tribunal records its assessment regarding the information raised pursuant to s.359AA of the Act. The Tribunal has carefully considered Mr Johnson’s evidence in response to this invitation. On balance, the Tribunal affords no weight to the material under cover of the s.375A certificate, given it lacks sufficient particulars and it is also somewhat dated. Accordingly, no adverse inferences are drawn from such material. The Tribunal proceeds to make the following assessment of the criteria relevant to the present application for review in matter 1815030.
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.
Mr Johnson confirmed in his oral evidence that he no longer employs the nominee, Mr Manpreet Singh. He also confirmed his nomination of Mr Manpreet Singh would not progress. Additionally, it is apparent that Performance Auto’s Nerang has not traded since March 2020 and its doors remain closed. Accordingly, at the time of this decision, the Tribunal is not satisfied that the nominee will be employed on a full-time basis by Mr Johnson in the role of a Motor Mechanic as defined in ANZSCO. Further, the Tribunal is not satisfied that the nominee’s position is consistent with the size and scope of the applicant’s business, and that he is legitimately employed to fill a position that cannot be filled from the domestic labour market. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Motor Mechanic (ANZSCO Code 321211) is not genuine.
For these reasons the requirements of r.2.72(10)(f) are not satisfied by the applicant.
CONCLUSION
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.
K. Chapman
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)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.

[2021] AATA 1712

15 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction