Kairouz Architects and Associates Pty Limited (Migration)

Kairouz Architects and Associates Pty Limited (Migration) [2021] AATA 2266 (18 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kairouz Architects and Associates Pty Limited
CASE NUMBER:  1825106
HOME AFFAIRS REFERENCE(S):          BCC2017/1954180
MEMBER:Alison Mercer
DATE:18 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 18 June 2021 at 5:11pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – terms and conditions of employment no less favourable than for Australian citizen or permanent resident – position inadvertently advertised as ‘junior’ in fact for graduate undertaking same duties under same terms and conditions – salaries dependant on qualification, registration and experience – genuine position – tasks of position compared to ANZSCO description – registration mandatory for ‘architect’, but not for ‘graduate architect’ – increase in high-value renovation work during COVID-19 restrictions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA, 359(2)
Migration Regulations 1994 (Cth), rr 2.72(10)(c), (f), 2.73, Schedule 2, cl 186.211
CASE
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 9 August 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, Kairouz Architects & Associates Pty Ltd, applied for approval on 2 June 2017 for the position of Architect. A nomination of an occupation for a subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(c) because the delegate was not satisfied that the terms and conditions of employment of the person identified in the nomination would be no less favourable than the terms and conditions that were provided, or would be provided, to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location. The delegate noted that the nominee appeared to be a junior Architect and was therefore not subject to terms and conditions as favourable as other Australian Architects listed as working for the business. As one subparagraph of r.2.72(10) was not met, the delegate refused to approve the nomination.
The Tribunal received a review application from the applicant on 29 August 2018. It was signed on behalf of the applicant by its director, Mr Chahid Kairouz, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Kairouz appointed a registered migration agent, Mr Nick Katsis, as the applicant’s representative and authorised recipient for correspondence.
On 8 February 2021, the applicant provided supporting documents, including an organisational chart, an employee list, payslips from the nominee, and a letter from the applicant’s accountant, dated 8 February 2021.
On 25 February 2021, the Tribunal wrote to Mr Kairouz, via the agent, pursuant to s.359(2) of the Act to invite him to provide updated and current information demonstrating that the applicant met all of the criteria in r.2.72 (not just the criterion that the delegate found was not met) in order to have its nomination approved. The Tribunal provided examples of the kind of information that might assist it to assess the applicant against the r.2.72 criteria and requested that the information be provided by 11 March 2021.
On 11 March 2021, the Tribunal received the following information from the applicant:
·evidence of its Australian Securities and Investments Commission (ASIC) and Australian Business Number (ABN) registration;
·position description for the nominated occupation;
·evidence of the terms and conditions of the applicant’s employees, including the nominee;
·Departmental approval of the applicant as a Standard Business Sponsor (SBS) on 21 May 2018;
·evidence of advertisement of the nominated position;
·original employment contract for the nominee, together with updated one dated 1 March 2021;
·profit and loss statement for the applicant for 2018/19;
·salary guide for the position of Architect or junior Architect; and
·further legal submissions.
The further legal submissions included the following points:
…
[W]e have attached sample work samples and associated correspondence between the client and the nominee.
It also must be stated that although the original advertisement stated Architect [Junior] Experienced, the fact is that the company sought a graduate and the term ‘Junior’ was used inadvertently, thus creating some potential confusion for the case officer.
However, as per the attach description, the duties undertaken by the nominee have not differed from those undertaken by other employees, whether Australian citizens or sponsored.
…
Please refer to attached employment contract that encompasses identical terms and conditions that are applicable to Australian citizens, permanent resident and other temporary [sponsored] employees. With respect to the salary, the nominee recently received a pay rise and this is reflected in his updated employment contract. Additionally, we have provided a remuneration survey that highlight the following salary ranges and an advertisement that highlights a salary of $53,900.00:
Bespoke: $55,000.00 - $60,000.00 [$70,000.00]
Payscale: $51,000.00 - $99,000.00
Glassdoor: $53,000.00 - $84,000.00
With a salary of $56,000.00, we argue that the nominee’s salary falls within the aforementioned salary ranges. PAYG statements have been provided…
Supplementary Information – Company Overview
C. Kairouz Architects is a young, emerging architectural practice with fresh ideas and disciplined persistence. Our practice has a growing industry reputation for its unique process, design solutions and project implementation.
Founded by Director Chahid Kairouz, the company was born in 2010 following Chahid’s extensive experience, building and development. Chahid studied at University of Melbourne and graduated with three degrees in Architecture, Property and Construction and Planning and Design. Since then, he has commenced working for Equiset Grollo Group and gained over 12 years of experience working on landmark building in Melbourne, notably the Intercontinental Hotel Melbourne ($65m) and University Square project in Carlton ($350m). Chahid now applies this knowledge of sound building principles to design functional and creative spaces with strength in project delivery.
Our practice operates from a space strategically located in Melbourne, designed and refurbished by Chahid Kairouz. Our boutique-sized practice offers a high level of director input throughout the design, documentation and delivery phases.
The team here at C Kairouz Architects performs all of types to ensure quality and we embrace an attitude of excellence. Our ideas are born from understanding what is most valuable to our clients, and our approach demonstrates our passion for not only the finished project, but for the creative process as a whole.
Irrespective of the type or size of development, our philosophy at C Kairouz Architects is to approach all situations with a clean slate to enable us to assess the best outcome for our clients. In doing so, we are able to tackle each challenge in a unique manner; dispel any assumptions or limitations; and allow for the best possible creation. The result confidently showcases the fresh C Kairouz Architects approach demonstrating aesthetic with stylistic form, practical function and quality through detail…
In noting the information above, we articulate that the business employs staff as required for operational reasons and has done so consistently. The organisation is not in the business of offering sponsorship for anything other than ensuring operational requirements are adequately staffed to ensure that customer needs are addressed. The owner has built their reputation upon this as evidenced by the repeat business. We would also like to highlight that the business not only employed the nominee, but also continues to maintain a higher level of Australian citizens as its core workforce.
…
Please refer to the attached employment contract inclusive of date that the contract was signed. Terms and conditions are identical to those that would be afforded to an Australian citizen or permanent resident under the exact circumstances. Salary variation would be as a result of seniority. Sample Employment contact of an Australian employee [Zac Hussein] has also been provided in order to highlight that the terms and conditions are identical with the exclusion of salary due to seniority…
Please be advised that the terms and conditions afforded the nominee are identical to those that would be offered to an Australian citizen or permanent resident. The only variance could be the fact that other staff may be paid more due to their seniority, which needs to be accounted for. As far as the salary is concerned, the nominee is being paid within the prescribed salary ranges as denoted within the remuneration surveys as per below and also noted within the original application.
Bespoke: $55,000.00 - $60,000.00 [$70,000.00]
Payscale: $51,000.00 - $99,000.00
Glassdoor: $53,000.00 - $84,000.00
In essence, the business has equivalent workers albeit, at different salary levels. However, it must be noted that their terms and conditions of employment as per the employment contracts do not differentiate from those afforded the nominee. Furthermore, it must also be noted that staff are normally paid above the relevant Award if one is to make such an assessment. Salary reviews are undertaken where necessary as the company deems it necessary to ensure staff are rewarded for their efforts and to ensure retention in a highly competitive environment. Subject to this, the nominee recently received a pay increase as reflected in the new employment contract.
…
The position being offered to the Nominee is identical to that which is undertaken by other staff. The emphasis here is that the nominee has been offered this position as a result of operational needs and due to their experience that the organisation believes will add value and an international way of thinking. With regards to duties of an Architect, please refer to the attached employment contract for comprehensive duties and position description. With respect of these duties, they are identical to those undertaken by the other staff that have similar duties based on their title and within the same environment.
We articulate that this is a genuine position and that the position offered to the nominee is crucial for the operational requirements as a result of the departure of other staff through natural attrition.
…
[W]e urge you to view the company website as it will highlight the extensive projects that they have undertaken and the fact that they are a reputable Architectural business.
As far as supporting, we refer you to the various financial documents that have been uploaded for your consideration. We have also provided a Letter of Support from the respective financial accountant for your consideration.
…
[W]e provide a brief from the actual website as the business delivers architecture, planning and design globally.
Architecture
Architecture influences all aspects of the built environment and brings together the arts, environmental awareness, sciences and technology. By combining creative design with technical knowledge, architects create the physical environment in which people, live, which in turn, influences the quality of life.
Not only do architects inform the overall aesthetics of a city or region by pushing the boundaries of design and style, they also make invaluable contributions to the quality of the life, public health and sustainability of any given region.
By adopting a dynamic approach to the planning, design and maintenance of the built environment, architecture can contribute to lifting productivity and helping us to prepare for and mitigate projected future impacts arising from population, growth, demographic change and climate change.
As a substantial contributor to the design of our cities and towns, architecture also has a significant role to play in improving social inclusion, and, in turn, health outcomes in our communities.
By raising design standards in our cities, urban areas, commercial and residential buildings, the profession as a whole as well as the Institute has a major role in shaping Australia’s future.
Development
At C Kairouz Architects we offer an exclusive service in early consultation and management, assisting with the ever changing and evolving factors that can influence developments.
We are able to guide clients on avenues to attain finance, sell, resolve property acquisitions, subdivision matters etc. With the tightening of the economy, our company assists in finding investors and or joint venture partners to enable projects to commence.
Project Management
At C Kairouz Architects we believe that great design is only half the challenge, we also put great emphasis on ensuring the design is managed well, built to higher standards and finished with the best quality attainable.
In lieu of the full Architectural scope of services, we can tailor project management requirements for all projects. At C Kairouz we effectively manage projects by balancing three key principles. Time, quality and cost.
We have managed many projects through the design documentation phase, construction and post construction compliances.
Sustainability
The Institute affirms the responsibility of the architectural profession, as a key player in the construction industry, to embrace an integrated approach to ecological, social and economic sustainability. The Institute regards its Environment Policy as core to members’ practice and professional responsibilities.
The Environment Policy incorporates several useful appendices which list design strategies for architects linking these to specific objectives and further reading in the Environment Design Guide. Sustainable Design Strategies for Architects is a back-up document to the Environment Policy.
In its Sustainability Policy for the Australian Institute of Architects advocates a range of actions for government, its members, the design and construction industry, and the broader community that it believes will drive the necessary changes.
…
We advise that there are no direct supervisors with whom to split the duties. Each staff member is assigned tasks by management/owners and need to adhere to instructions handed to them.
Furthermore, it can be argued that there is no actual split in duties between the nominated position and that of any direct supervisor… Please be advised that the position will not be shared with any existing staff at this level of the business. Each staff member has set projects to undertake and each staff member oversees the demands of the business as deemed necessary.
…
As can be evidenced by the Organisational Chart and the staff list above, it is evident that the organisation seeks to and actually employs predominantly Australian citizens or permanent residents…
In concluding, it is hoped that the aforementioned information will suffice to illustrate the genuineness of the position and the genuine and ongoing need within the context and structure of the operations. We would like to add as a final comment that, the business has been employing numerous Australian workforce over the years supplemented by sponsoring staff for operational staff requirements to be met; something, that they ask is taken into consideration during the appeal process.
…
On behalf of the applicant, Mr Chahid Kairouz appeared before the Tribunal on 17 June 2021 by videoconference to give evidence and present arguments. The applicant’s agent, the nominee and the nominee’s agent also attended the hearing by videoconference.
Mr Kairouz told the Tribunal that the nominee was recruited in response to the applicant advertising for an Architect. He noted that they used the phrase ‘junior Architect’ when what was meant was ‘Graduate Architect.’ In response to the Tribunal’s query, Mr Kairouz said that Graduate Architects was a term used in the profession, and in the applicant’s business, and referred to Architects who were not yet registered. Mr Kairouz explained that not all Architects were, or were required to be, registered, but if an Architect did become registered, then he or she was entitled to run their own practice and supervise other Architects. Becoming registered entailed a considerable level of experience across a broad range of practice areas and sitting an examination. Mr Kairouz noted that many Architects chose not to become registered for their entire careers, especially those who worked for large firms and/or in specialised areas.
Mr Kairouz explained the structure of the applicant’s business was 2 directors (himself and another director), and a number of Senior Associates, under each of whom a number of other Architects and Graduate Architects worked. The business operated out of 2 offices, Thornbury and Glen Iris. The nominee was in a team based in the Thornbury office. Although the nominee was 36, he was still classified as a Graduate Architect as he had not yet undertaken the registration process, although Mr Kairouz estimated that the nominee had almost enough professional experience now to undertake the registration process if he wished to do so. Mr Kairouz noted that some people in the profession were classified as Graduate Architects for their entire careers, and the relevant Award recognised this by having different levels or categories of Architect and Graduate Architect based on their years of experience in the profession. Mr Kairouz said that the applicant generally paid above the Award rate, but used the same principles to determine the appropriate salary (that is, based on whether an employee was a registered Architect or a Graduate Architect, and then based on their years of experience).
In response to the Tribunal’s query, Mr Kairouz stated that the Graduate Architects within the practice performed substantially the same duties as the Architects, with the main difference being that the Senior Associates and/or registered Architects generally had greater strategic or management responsibilities, such as client liaison and negotiating fees. Otherwise, the duties were the same. Mr Kairouz noted that while most employees of the practice were Australian, the applicant had a number of overseas trained Architects and Graduate Architects, as there was no barrier to them working in that capacity in Australia and in many cases, their overseas experience and/or qualifications were valuable, such as those who had significant experience in computer aided drafting. Mr Kairouz also noted that the applicant had sponsored several overseas employees besides the nominee, and none of its other nominations had been refused.
Mr Kairouz told the Tribunal that the practice worked with different professional consultants depending on the nature of a particular project (for example, fire safety consultants) and each project potentially involved different sets of planning and building codes. Mr Kairouz noted that the Victorian Building Code had changed significantly and frequently over the last 12, in response to the issue of faulty cladding having been identified in many apartment complexes. This, and the frequent upgrading of computer programs such as CAD and BIN (Building Information Modelling, a 3D program) meant that the applicant’s practice ran regular Continuing Professional Development courses and training. In response to the Tribunal’s query, Mr Kairouz estimated that about 30% of the Architects within the applicant’s practice were registered while the others were not. He noted that he himself was, even though he was only 5 years older than the nominee, but explained that he had a disproportionate amount of experience for his age, as he had started work in the construction industry at 19, continued this throughout his studies, and was also a licensed builder. In response to the Tribunal’s query, Mr Kairouz estimated there were 6 or 7 Graduate Architects besides the nominee working in the Thornbury office and they were paid according to their years of professional experience within this classification. He maintained that the nominee’s salary of $56,000 per year plus superannuation was greater than the Award rate for the equivalent classification, but less than some of the other Graduate Architects employed in the practice as they had more experience than the nominee. In response to the Tribunal putting to him some information indicating that the Payscale and Job Outlook websites suggested that the average salary for an Architect was higher than $56,000, Mr Kairouz noted that these sites were generally looking at registered Architects and not Graduate Architects.

In relation to how the practice weathered the COVID19 pandemic and its attendant lockdowns in Melbourne, Mr Kairouz said that their business was currently experiencing an influx of work, which he attributed to pent up demand during the lockdown(s) and the fact that the practice worked on projects on the suburban fringes, where demand continued to be high. He acknowledged that commercial retail work had experienced a down turn, especially within the Melbourne CBD, but this had not had a significant impact on the applicant’s practice, as this made up little of their work. He noted that the enforced savings some people accumulated in lockdown due to not being able to travel meant that they were also getting a lot of work renovating high value homes for people, and that their suburban commercial and residential project work remained strong. The applicant was therefore able to retain all its staff, including the nominee, and there was a genuine need for the nominee within the practice.
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 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 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 r.2.73.
The Tribunal is satisfied, from having reviewed the documents on the Department’s file, that:
·the applicant nominated an occupation under s.140GB(1)(b) (being Architect) and thus meets r.2.73(1A)(a);
·the applicant identified the nominee, Mr Alberto Furia, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);
·the nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);
·the applicant identified the nominee, Mr Alberto Furia, in the nomination, thus meeting r.2.73(4)/(4A) and (5); and
·the nomination included the location at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 232111), thus meeting r.2.72(4).
The Tribunal is therefore satisfied that the requirements of r.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 has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. That approval ceases on 21 May 2023.
Accordingly, the Tribunal finds that the requirements of r.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.
As noted above, the Tribunal is satisfied that the applicant identified the nominee Mr Alberto Furia as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.
Accordingly, the Tribunal finds that the requirements of r.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. In these cases:
·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
The Tribunal has reviewed the Department’s records and is satisfied that the applicant has never held a subclass 457 visa. As the nominee is not the holder of a subclass 457 visa, the requirements of r.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;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant written instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Architect (ANZSCO code 232111) and specified that the location at which the occupation was to be carried out was Thornbury in the state of Victoria, postcode 3071.
Accordingly, the Tribunal finds that the requirements of r.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 this was certified in the nomination form submitted by the applicant to the Department.
For these reasons, it is satisfied that the requirements of r.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 rr.1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it in the manner specified in r.1.13B.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances, this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal is satisfied that the nominated occupation of Architect is listed in IMMI 17/060, under ANZSCO code 232111, and is not subject to any occupational caveats listed in the instrument. Nor is there any requirement that the occupation be supported in writing to the Minister by a specified organisation.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met, and the requirements of r.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: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
Based on the evidence before it, the Tribunal finds that the nominee’s proposed annual earnings consist of his base salary of $56,000 plus 9.5% superannuation as per the updated employment contract dated 1 March 2021. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied 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.
The Tribunal is satisfied from the most recent organisational chart provided by the applicant’s agent on behalf of the applicant that, besides the nominee, there are 8 other Architects, of whom 7 are Australian citizens. A sample contract for one of the Australian citizen Architects, dated September 2017, has been provided, indicating that that employee is paid $60,000 plus superannuation.
On the issue of the salaries and other terms and conditions of its Architect employees, both Australian and temporary residents (including the nominee), it was submitted on behalf of the applicant by its agent in March 2021 that:
It also must be stated that although the original advertisement stated Architect [Junior] Experienced, the fact is that the company sought a graduate and the term ‘Junior’ was used inadvertently, thus creating some potential confusion for the case officer.
However, as per the attach description, the duties undertaken by the nominee have not differed from those undertaken by other employees, whether Australian citizens or sponsored.
…
Please refer to attached employment contract that encompasses identical terms and conditions that are applicable to Australian citizens, permanent resident and other temporary [sponsored] employees. With respect to the salary, the nominee recently received a pay rise and this is reflected in his updated employment contract. Additionally, we have provided a remuneration survey that highlight the following salary ranges and an advertisement that highlights a salary of $53,900.00:
Bespoke: $55,000.00 - $60,000.00 [$70,000.00]
Payscale: $51,000.00 - $99,000.00
Glassdoor: $53,000.00 - $84,000.00
With a salary of $56,000.00, we argue that the nominee’s salary falls within the aforementioned salary ranges. PAYG statements have been provided…
Please be advised that the terms and conditions afforded the nominee are identical to those that would be offered to an Australian citizen or permanent resident. The only variance could be the fact that other staff may be paid more due to their seniority, which needs to be accounted for. As far as the salary is concerned, the nominee is being paid within the prescribed salary ranges as denoted within the remuneration surveys as per below and also noted within the original application.
Bespoke: $55,000.00 - $60,000.00 [$70,000.00]
Payscale: $51,000.00 - $99,000.00
Glassdoor: $53,000.00 - $84,000.00
In essence, the business has equivalent workers albeit, at different salary levels. However, it must be noted that their terms and conditions of employment as per the employment contracts do not differentiate from those afforded the nominee. Furthermore, it must also be noted that staff are normally paid above the relevant Award if one is to make such an assessment. Salary reviews are undertaken where necessary as the company deems it necessary to ensure staff are rewarded for their efforts and to ensure retention in a highly competitive environment. Subject to this, the nominee recently received a pay increase as reflected in the new employment contract.
…
The Tribunal notes that the nominee’s contract of employment of March 2021 gives a position description of Architect (Graduate). At hearing, Mr Kairouz explained that this is an accepted term in the profession to refer to an Architect who is not registered, and who may have considerable work experience, or may in fact be a recent graduate from the tertiary course. He gave evidence that both the profession as a whole, and the Architects Award 2020, use these classifications, and that within each classification in the Award, there are different paygrades based on years of experience. The Tribunal has reviewed the Architects Award 2020, which is structured as Mr Kairouz described. The Tribunal notes that a sample of job advertisements reviewed by it also use this terminology.
Based on the above, the Tribunal is satisfied that there is some pay variation between the Graduate Architect and the Architect employees of the applicant based on their level of experience/seniority, which is unrelated to their visa status. It accepts that this is common practice in this and many other professions.
The nominee’s employment contract dated 1 March 2021 indicates that his conditions have been set according to the National Employment Standards (NES). Accordingly, the Tribunal is satisfied that the nominee’s contract of employment has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth). Moreover, the contract of employment for an Australian citizen employed as an Architect dated September 2017 contains virtually identical provisions, albeit expressed to apply under different Commonwealth and state-based legislation (this appears to have been prior to the introduction of the NES references into the applicant’s employment contracts).
The Tribunal considers it reasonable that employees in professions in the same office, such as Architects (or for instance lawyers) may perform largely the same work and be paid differently, based on experience and the extent to which they are able to work with little or no supervision. On balance, it accepts that a firm such as the applicant may employ Architects and Graduate Architects, who may carry out similar tasks (but with Graduates having less strategic/client facing responsibility and experience) yet be paid differently. Under those circumstances, the Tribunal considers that these would not be exactly equivalent: that is, in this case, there is no exact an Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal has considered whether the terms and conditions of employment of the nominee would be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location; that is, if an Australian Graduate Architect were employed by the applicant.
The Tribunal has accessed the Payscale and Australian Government Job Outlook websites (as at 28 May 2021), which indicate the following:
·Payscale: average salary for an Architect in Australia: $66,736 per year; and
·Job Outlook: average salary for all Architects and Landscape Architects: $1,674 per week, annualising to $87,048.
However, neither of the above websites listed Graduate Architects separately from Architects.
Therefore, the Tribunal has also had regard to recent advertisements for full time Graduate Architects on Seek.com (where a salary range was listed), as follows:
·Graduate Architect, Ivory Group, Sydney, CBD, Inner West & Eastern Suburbs, Design & Architecture, $70,000 - $90,000 + Super (advertised 21 May 2021);
·Architect or Graduate Architect, LT Associates Architects, location: Newcastle, Maitland & Hunter, $55,000 - $72,000 (advertised 25 May 2021);
·Graduate Architect, Bloomfield Tremayne & Partners, location: Sydney area: CBD, Inner West & Eastern Suburbs, $65,000 - $79,999 (advertised 11 May 2021); and
·Graduate Architect, Sparks Architects, Queensland, Sunshine Coast,
$60,000 - $64,999.
At hearing, the Tribunal put the above to Mr Kairouz, noting that 3 out of the 4 advertisements above specifically for Graduate Architects had salary ranges above that of the nominated position. Mr Kairouz responded that nominee is paid above the Award rate and his salary was commensurate with both his experience and the market rate for a Graduate Architect in a relatively small, boutique firm of Architects such as the applicant’s. The Tribunal gives weight to this evidence, and to the fact that the nominee’s salary is within the range identified in the second advertisement above and, on balance, is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee in the same workplace.
56.Accordingly, the Tribunal finds that the requirements of r.2.72(10)(c) are met.
Base rate of pay
57.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 instrument IMMI 13/028 (currently $53,900).
58.However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
59.Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
60.The Tribunal is satisfied from the evidence provided that the nominee’s annual earnings will be $56,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc).
61.Tribunal is further satisfied that the nominee’s annual earnings exceed the TSMIT, and that (based on the salary rate information assessed in the section above) 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 also be greater than the TSMIT. On balance, therefore, the Tribunal finds that the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
62.As part of the nomination, the applicant must certify various matters in writing: r.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 instrument IMMI 17/060;
·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 written 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 IMMI 13/067; 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 IMMI 17/060.
63.From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
64.Accordingly, it is satisfied that the requirements of r.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.
The Tribunal has had regard to the information provided by the applicant’s agent, including the information drawn from the applicant’s website about the nature of its architectural practice, and is satisfied that it has a genuine need to employ a number of Architects of varying degrees of experience.
The Tribunal has also compared the position description for the nominated occupation (which is annexed to the nominee’s most recent employment contract) with the occupational description for Architects in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary (online edition December 2019).
The position description for the nominee provides the duties are stated to include but are not limited to:
·obtaining advice from clients and management to determine type, size and style of planned buildings and alterations to existing buildings;
·preparing of drawings and documents for planning applications;
·providing information regarding materials, designs;
·preparation of contract documents for use by builders and calling tenders on behalf of clients;
·liaising with engineering and other consultants involved in the project;
·preparing reports, consultant/authority coordination and architectural drawings/documentation;
·consulting with professionals and clients about external area designs, costs and construction;
·compiling and analysing community and site data about geographical and ecological features, landform, soil, vegetation, site hydrology, visual characteristics and human made structures, to formulate land use and development recommendations, and for preparing environmental impact statements;
·preparing reports, site plans, working drawings, specifications, and costs estimates for land development, showing location and details of proposals, including ground modelling, structures, vegetation and access;
·inspecting construction work in progress to ensure compliance with plans, specifications, and quality standards; and
·general administrative tasks such as filing and answering phone.
The ANZSCO occupational description provides as follows:
UNIT GROUP 2321 ARCHITECTS AND LANDSCAPE ARCHITECTS
ARCHITECTS AND LANDSCAPE ARCHITECTS design commercial, industrial, institutional, residential and recreational buildings and landscapes.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Registration or licensing may be required.
Tasks Include:
·obtaining advice from clients and management to determine type, style and size of planned buildings and alterations to existing buildings
·providing information regarding designs, materials and estimated building times
·preparing project documentation, including sketches and scale drawings, and integrating structural, mechanical and aesthetic elements in final designs
·writing specifications and contract documents for use by builders and calling tenders on behalf of clients
·consulting with Professionals and clients about external area designs, costs and construction
·compiling and analysing site and community data about geographical and ecological features, landforms, soils, vegetation, site hydrology, visual characteristics and human-made structures, to formulate land use and development recommendations, and for preparing environmental impact statements
·preparing reports, site plans, working drawings, specifications and cost estimates for land development, showing location and details of proposals, including ground modelling, structures, vegetation and access
·inspecting construction work in progress to ensure compliance with plans, specifications and quality standards
Occupations:
232111 Architect
232112 Landscape Architect

232111 ARCHITECT
Plans and designs buildings, provides concepts, plans, specifications and detailed drawings, negotiates with builders and advises on the procurement of buildings. Registration or licensing is required.
Skill Level: 1
Specialisation:
Conservation or Heritage Architect
…
The ANZSCO description above states that registration or licensing is required to work as an Architect. As noted previously, Mr Kairouz’s evidence at hearing was that Architects must be registered but Graduate Architects do not have to be registered, even though they mostly carry out the same tasks, albeit generally at different levels of seniority. The Tribunal notes that the ANZSCO online dictionary does not contain a separate entry for the occupation of Graduate Architect.
The Tribunal was referred by the nominee’s agent to the Department’s Procedures Advice Manual (PAM3) (as it was as at the time the nomination application was lodged), which provides the following guidance in relation to the ‘mandatory licensing’ requirement in relation to subclass 186 visas:
9. EN-186 mandatory registration, licensing or similar
9.1 Mandatory registrations, licensing or similar
Clause 186.211 refers:
If, in order for a person to work in an occupation where registration, licensing or professional membership is mandatory in the State/Territory in which the position is located, the applicant must hold, or be eligible to hold, the relevant registration, licence or membership, at the time of application.
Registration and licensing requirements are generally specified in Commonwealth or State/Territory legislation that would apply to a specific occupation or trade and would be administered by a specific authority specified in the legislation.
Visa applicants must provide evidence of registration, licensing or professional membership or eligibility for registration, licensing or professional membership at the time of application. Evidence that predates the date of application but submitted after the application is made may be accepted if submitted before a decision is made on the application. Evidence dated/obtained after the visa application is made does not meet 186.211 requirements.
9.2 Registration/licensing cannot be waived
If it applies, the mandatory registration, licensing or membership criterion cannot be waived under any circumstances.
9.3 Definition of ‘mandatory’
Registration, licensing or professional membership:
·is considered mandatory for visa purposes only if every person working in that occupation is required to have some form of registration, licensing or professional membership
·is not considered mandatory if a person can perform work in the occupation without registration or similar, even if the work has to be performed under supervision.
If, for visa purposes, registration, licensing or professional membership is mandatory (as described above), the registration, licensing or professional membership held must not impose further requirements or limit the ability of the person to perform the full range of tasks and the person must not require further training or on-the-job supervision:
·an applicant with conditional or provisional registration, licensing or professional membership that requires them to undergo additional safety or occupational training or to work in supervised workshops does not satisfy 186.211 but
·continuing professional development requirements of fully registered or licensed applicants are acceptable, however, and such applicants satisfy 186.211.
Example: The occupation of architect helps explain the above principles.
Registration in the occupation of architect is not considered mandatory (for visa purposes) because a person can work without registration, provided they work under the supervision of a registered architect. The important point of difference between this occupation and that of the medical practitioner in the context of 186.211 is that the fact that the person works under supervision is irrelevant, because registration is not mandatory in that occupation. This means that an architect who works under supervision can satisfy 186.211.
9.4 Ascertaining whether registration/licensing is required
There is no single definitive source that covers registration, licensing or membership requirements across occupations identified within the ANZSCO framework. This is partly because registration and licensing requirements are generally managed at State/Territory level through industry or occupation specific legislation.
The starting point in assessing whether a particular occupation requires licensing, registration or specific membership is the ANZSCO dictionary. The dictionary refers to registration, licensing and professional membership requirements at the Unit Group level for each group of occupations. Information in the dictionary:
·indicates that registration, licensing or professional membership ‘is’ required, if this is mandatory or
·where requirements vary across States/Territories, indicates that registration, licensing or professional membership ‘may’ be required or
·“is silent” if registration, licensing or professional membership is not required at all.
If necessary, officers can obtain detailed information about registration, licensing or professional membership through the visa applicant or nominator or directly from the registering authority, keeping in mind that requirements may vary across States/Territories. If uncertain as to the registration or licensing requirements that may apply to a particular occupation or whether such registration or licensing would be considered mandatory, officers are to refer to this instruction’s owner for advice.
Although the above guidelines are expressed in relation to the subclass 186 visa requirements, the Tribunal nevertheless considers them relevant to the issue raised by r.2.72(10)(f), which is whether the nominated position is genuine. Although the nominated occupation is Architect, which ANZSCO states requires registration, the nominated position in which the nominee is working is Graduate Architect, for which the Tribunal accepts registration is not required. The Tribunal has reviewed the website of the peak Australian body for the profession, the Australian Institute of Architects, which (amongst other things) offers memberships to registered Architects, Graduates and students: Overview – Australian Institute of Architects (architecture.com.au)
In the Tribunal’s view, this, in combination with the fact that there is no separate ANZSCO listing for Graduate Architects, supports a conclusion that Graduate Architects should be considered a subset of the ANZSCO occupational description of Architect, albeit a subset that does not require registration. This accords with the approach taken in the PAM3 extract cited above. While Departmental policy is not legally binding on the Tribunal, the Tribunal nevertheless considers it appropriate to follow it in this case, as it appears to reflect the reality of the profession in Australia.
Given the above, the Tribunal is satisfied that the duties of the nominated occupation and position largely and closely correspond with the ANZSCO description for an Architect.
Accordingly, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and that the requirements of r.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 written instrument.
The Tribunal is satisfied that the applicant provided a recent contract of employment for the nominee dated 1 March 2021, provided to the Tribunal, indicating that the nominee’s salary is $56,000 plus superannuation.
Accordingly, the Tribunal finds that the requirements of r.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): r.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 the applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of r.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 s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant written instrument IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The Tribunal is satisfied that the nominated occupation is classified in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary as a Skill Level 1, and the applicant is thus exempted from having to have undertaken LMT.
For the reasons given above, 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.
Alison Mercer
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 2266

18 June 2021

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