KALMEIRA HOLDINGS PTY LIMITED (Migration)

KALMEIRA HOLDINGS PTY LIMITED (Migration) [2021] AATA 3164 (16 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kalmeira Holdings Pty Limited
CASE NUMBER:  1826052
HOME AFFAIRS REFERENCE(S):          BCC2017/2325976
MEMBER:Namoi Dougall
DATE:16 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 16 August 2021 at 1:29pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – terms and conditions of employment – comparison of tasks of position and ANZSCO description – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB
Migration Regulations 1994 (Cth), rr 2.72, 2.73
LEGISLATION
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 21 August 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 29 June 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa) because the delegate was satisfied that the caveats specified in the relevant instrument applied so as to make the nominated occupation inapplicable for the grant of a Subclass 457 visa. In particular, the delegate found that a number of the tasks performed by the nominee were lower-skilled tasks.
Mr Kalmarkis, a director of the applicant, appeared on behalf of the applicant before the Tribunal on 22 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Gurpreet Sidhu, the nominee.
The applicant was represented in relation to the review by its registered migration agent.
BACKGROUND
In a submission to the Department Mr Kalmarkis stated that the business operates a fleet of 10 refrigerated trucks which pick up refrigerated and perishable goods such as meat, chicken and seafood in Sydney and deliver them to Canberra. They have 400 clients. The submission stated that they do more than 1,000 deliveries to Coles and IGA in Canberra; daily pick ups at Flemington Markets; and 200 pick ups from the Fish Markets as well.
In the business nomination application, the applicant indicated that the nominee would be employed as a Transport Company Manager on a salary of $65,000 at the location of Five Dock in Sydney, New South Wales.
At the hearing Mr Kalmarkis stated that the business has been operating since 2012 and is a refrigerated transport business. Currently they employ 12 employees, including a bookkeeper and accountant. When asked if they are employed directly, Mr Kalmarkis said they are not but they are part of his finance team. The drivers are contractors, he has a secretary and, including the transport manager, there are 11 employees. Ten of these are directly employed.
At the hearing the Tribunal asked how the business has been trading and Mr Kalmarkis said it has been affected in the part of the business supplying restuarants and pubs but improved in relation to deliveries to Woolworths, Coles and IGA.
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 reg 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 reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Mrs Gurpreet Sidhu in the nomination. The nomination includes the location of Five Dock, in Sydney, NSW, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Transport Company Manager 149413. For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Departmental records indicate that the applicant was approved as a standard business sponsor 5 September 2017 and that the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor.
For these reasons the requirements of reg 2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
The applicant has identified in the nomination Mrs Gurpreet Sidhu, the nominee, to work in the nominated occupation of Transport Company Manager. For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
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 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 applicant has provided the name of the occupation, Transport Company Manager, and its corresponding ANZSCO code of 149413 and the location of Five Dock, in Sydney, which is where the occupation will be carried out.
For these reasons 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.
Having perused the Department’s file, the Tribunal is satisfied that the applicant has provided the required certification as part of its nomination.
For these reasons 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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to Immigration, either about the nominee or a person associated with the applicant.
For these reasons 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: reg 2.72(10)(b).
The nominated occupation of Transport Company Manager and its 6-digit code of 149413 is specified in the instrument. Also specified in the instrument are caveats which, if relevant to the nomination, would make the occupation inapplicable for the nominee as a Subclass 457 visa applicant. Those caveats are:
9The position predominantly involves responsibility for low-skilled tasks.
Example 1:Rostering, maintaining records, reception duties and allocating duties to housekeepers, porters or doorpersons
Example 2:Fruit picking or packing or feeding of livestock or animals.
Example 3:Truck driving.
19The position is in a business that has an annual turnover of less than AUD1,000,000…
21The position is in a business that has fewer than 5 employees…
The Tribunal has been provided with significantly more financial information than the Department, including: BAS summaries from 1 January 2019 to 31 December 2020 and financial statements for the tax years ending 30 June 2019 and 2020, as well as the company tax returns for the same financial years. The financial statements for the tax years ending 30 June 2019 and 2020 indicate that the applicant’s turnover for those years was $2,118,518 and $2,216,316 respectively. Also provided was a draft internal profit and loss statement for the period ending 30 June 2021, which indicates that the turnover for that period is $1,107,477. Further, the Tribunal has been provided with payroll information for the periods ending 30 June 2020 and 2021, which indicate that the applicant currently employs 11 employees.
On the evidence the Tribunal finds that the applicant’s turnover for the 2019 and 2020 financial years was more than AUD1,000,000. Further, on the additional information, the Tribunal is satisfied that the applicant’s turnover for the financial year ending 30 June 2021 will be more than AUD1,000,000.
In relation to caveat 9 set out above, the Tribunal has made findings below that the position associated with the nominated occupation is genuine, and on that finding, the Tribunal also finds that the position is not one that predominantly involves responsibility for low skilled tasks.
For the above reasons, the Tribunal finds that the position associated with the nominated occupation is applicable for a Subclass 457 visa applicant. For these reasons the requirements of r.2.72(10)(aa) are met.
The relevant instrument does not require the nominated occupation of Transport Company Manager to be supported in writing to the Minister, by a specified organisation before the nomination. For these reasons the requirements of reg 2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009 (Cth).
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). ‘Earnings’ is defined in reg 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/013: reg 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, which is $250,000: reg 2.72(10AB). The nominee’s annual earnings of $65,000 are less than those specified in the instrument.
The evidence before the Tribunal indicates that the nominated position is currently filled by the nominee and that there are no Australian citizen employees in the applicant’s business performing equivalent work at the same location.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in an Employment Agreement dated 19 June 2017 and signed by Mr Kalmarkis and the nominee, which indicates that the annual base salary of the nominee will be $55,000. The contract also sets out the details of the nominee’s superannuation and leave entitlements. The financial statements for the periods ending 30 June 2019 and 2020 as well as the draft internal profit and loss statement for the period ending 30 June 2021 indicate that the applicant made a profit of: $26,181; $11,164 and $86,557 respectively.
The Tribunal was provided with a number of market salary reports and surveys with current market salary information including similar job advertisements for Transport Company Managers. In particular the salary range for an average Transport Company Manager in Australia as set out on PayScale.com is $54,000 to $123,000, with the average being $79,400. The Tribunal is satisfied on the evidence before it that the proposed base salary of $65,000 is within the average market rate for an Australian equivalent.
On the evidence the Tribunal is satisfied that the applicant has the resources to provide the nominee with terms and conditions of employment, including the salary of $65,000 and the superannuation guarantee, that 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 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 (Cth).
On the above, the Tribunal is satisfied that the nominee’s terms and conditions will be no less favourable than the terms and conditions that would apply to an Australian employee performing equivalent work at the same location. For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.
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: reg 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.
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: r.2.72(10AB).
In this case the nominee’s annual earnings are $55,000; as this is not equal to or greater than the threshold of $250,000 specified in IMMI 13/028, r.2.72(10)(cc) applies.
The Tribunal is satisfied that the relevant rate of pay is greater than the TSMIT of $53,900. For these reasons the requirements of r.2.72(10)(cc) are met.
Certification under reg 2.72(10)(e)
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;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The Tribunal is satisfied that the relevant certifications have been made in the nomination form. For these reasons 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 ANZSCO occupational dictionary with regard to the position of Transport Company Manager (149413). The duties listed in ANZSCO for (1494) Transport Service Managers are as follows:
Tasks Include:
·     organising the purchase and maintenance of transport vehicles, equipment and fuel
·     liaising with clients to determine requirements and providing customers with advice and information regarding vehicle type, purchase or hire rates and obligations and handling complaints
·     receiving orders and bookings, and planning and implementing transportation schedules
·     ensuring goods are stored and transported in conditions that will maintain their quality
·     arranging collection and delivery of vehicles and goods
·     maintaining business records and preparing operational statements and reports
·     coordinating activities associated with the arrival, departure, loading and unloading of trains
·     ensuring compliance with occupational health and safety regulations
Further, ANZSCO states that a Transport Company Manager: “organises and controls the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers”.
Provided to both the Tribunal and the Department was the Employment Contract signed by the nominee and the director of the applicant, Mr Kalamarkis and dated 15 June 2017. Listed in the Contact were the nominee’s duties and responsibilities as follows:
·     Responsible for getting the right products in the right quantities, to the right locations all at the right time.
·     In charge of the day to day operations of the transport department. Efficiently managing a team of drivers and vehicles.
·     Responsible for all of the dispatching, routing, and tracking of delivery vehicles. Dispatching complex and oversized goods to national and international destinations.
·     Ensuring company compliance of all transport policies, legislation and procedures to do with tachograph and towing etc.
·     Managing, monitoring and developing a team of drivers and line managers. Involved in strategic development and strategy making.
·     Being the first point of contact for all drivers.
·     Making sure that all transport fleet vehicles are properly maintained and serviced.
·     Arranging for the induction and training off all new staff.
·     Regularly liaising with the delivery manager to ensure a smooth running of both departments.
·     Developing and nurturing customer relationships.
·     Maintaining accurate administrative records.
·     Giving drivers a full debrief, including tacho analysis.
·     Organizing vehicle checks.
·     Identifying operational issues, potential problems and opportunities.
·     Resolving and managing queries and complaints courteously and efficiently.
·     Appraising staff performance and also taking disciplinary measures when required.
·     Ensuring all site and customer objectives are achieved.
·     Responsible for all H&S investigations

At the hearing Mr Kalmarkis stated that the nominee started as a part time transport manager. The nominee has the knowledge and ability to see the business operation in its entirety; it is important that a driver cooperates with customers as they are the face of the business and a transport manager is critical to link drivers and customers. He also stated that he checks in each morning to see if there are any issues he needs to take further action on.
Mr Kalmarkis stated at the hearing that he has stepped back in the last 2 to 2.5 years and is involved about 30% of the time but he does liaise twice a day. He has another business in which he is a silent partner which takes up most of his time. He has been in the transport industry fo 20 years and now he has a young family. Mr Kalmarkis then stated that with the scheduling, drivers come in, get the manifest, and they are ready to go. He is not involved on the financial side of the business as his spouse works with the bookkeeper and he has an accountant. The Tribunal asked about human resources and Mr Kalmarkis said it was his secretary’s responsibility. Later in the hearing Mr Kalmarkis stated that he is responsible for obtaining new customers and looking after the customers on a general basis.
At the hearing Mr Kalmarkis stated that the best thing he has done is put on a transport manager who runs the business, as this has allowed him to do things he enjoys. He then explained that every morning the nominee checks what runs have to be done each day. The goods arrive in the warehouse in the morning and are boxed up overnight ready to be loaded in the morning, after which the drivers are on the way. The nominee will get calls during the day from customers for pick ups and deliveries. The nominee allocates which driver takes which job and contacts that driver with the pick up details. Throughout the day, on basis of the manifest, she separates the invoices so they can be emailed to appropriate customers. During the day she also deals with complaints and issues with trucks and drives. Mr Kalmarkis only deals with complaints when they are serious.
At the hearing Mr Kalmarkis stated that the nominee books trucks in for service and also makes sure that the trucks are clean, so they comply with licensing conditions. Occasionally she will need to check deliveries, for example, interstate freight that needs to be delivered throughout Sydney on a weekly basis. The Tribunal asked what else she did in relation to meeting legislation and regulations and he replied that the nominee is responsible for ensuring that the vehicles are well maintained. The Tribunal asked about whether there are policies and procedures and Mr Kalmarkis sated that there is a format book that has to be maintained on a daily basis as an inspector comes 3 times a year to check on this.
At the hearing the Tribunal asked who is responsible for purchasing vehicles, equipment and fuels and he said he talks with the nominee and discusses the prices for these items. The Tribunal asked who is responsible for purchasing vehicles and Mr Kalmarkis said he has the final say and he talks to the nominee about what size and type of vehicle is needed and he negotiates and approves payment.
At the hearing Mr Kalmarkis stated that the nominee is responsible for ensuring that goods are stored appropriately in a warehouse.
At the hearing the Tribunal asked who is responsible for maintaining business records and preparing operational statements and reports. Mr Kalmarkis stated that if it is something to do with financial matters then this is not the responsibility of the nominee but if it is something to do with drivers, deliveries and warehousing it is the nominee’s responsibility. In relation to OH&S generally it is the responsibility of the nominee, although he is also responsible. There is a guideline for drivers which is in their folders which includes information such as how to lift. He put the information together and he reviews the information. He has overall responsibility for the policy and procedures for OH&S but the nominee ensures compliance.
At the hearing the nominee stated that she started as a part time employee and became full time in January 2016 and from then she has been paid $55,000 plus superannuation. The nominee stated that each day she plans for the next day as companies email her the day before, she manages the driver team of 10 including 3 contractors. She gives direction to the drivers which include the orders for pick up and delivery. She dispatches, provides routes and tracks them. She sends 4 drivers to the Marrickville area, one for seafood, one in Mascot, and one to Flemington Markets. Once dispatched, she tracks them, including their distance from a delivery. If there is an operational problem such as machinery or on the road, she responds as she has to keep the team to time. If a driver is late, as she can see this from the tracking, she informs the customer of the delay.
At the hearing the nominee stated that she organises the vehicles, ensuring that they are maintained and serviced. She has operational duties including administrative records, including keeping a register of: correspondence and customer records; and vehicles, including when a vehicle has been service and registered. She helps develop relationships with customers by contacting them regularly and offering promotions. The nominee stated that she does not hire staff, but she does induct and train new staff, which includes OH&S training. The Tribunal asked if she ensures overall OH&S compliance and she said this is one of her responsibilities. She is also responsible for motivating staff to achieve goals.
The nominee stated at the hearing that she has to check that vehicles are registered, insured and are repaired and maintained. The nominee stated she is not responsible for purchasing vehicles, but she is responsible for recording the tachograph and if towing has been required. The Tribunal referred to goods being stored overnight and asked who is responsible for their appropriate storage and the nominee stated that it is her responsibility to ensure the goods are stored at the correct temperature. The nominee stated that she has to resolve problems, such as when keys are locked in vehicles and tyres are flat. She calls roadside assistance when this happens. If the problem is major and cannot be fixed she arranges for a tow truck to get the vehicle to a mechanic for repair. Sometimes she has to deal with customer complaints and it’s her responsibility to sort out the issue and make sure the problem does not happen again. Each day she prepars a strategy for the next day and according to the strategy she tells the drivers to follow that strategy. She keeps the team together by ensuring a calm atmosphere and by keeping the drivers happy. She is the first contact with the drivers and she maintains the transport fleet properly.
The Tribunal asked if the business has written policies and procedures and if she helped prepare the policies and procedures and the nominee said she did not help prepare them, but she implements them.
At review the Tribunal had more evidence before it than the delegate as to the operation of the applicant’s business and the tasks performed by the nominee and other employees. Although the nominee’s duties and responsibilities are not a perfect match for those set out in ANZSCO for the position of Transport Company Manager, the Tribunal is satisfied on the evidence that the nominee does perform a number of duties relevant and equivalent to those listed in ANZSCO, particularly around: receiving orders and bookings and planning and implementing schedules; ensuring that goods are stored and transported in a way to maintain quality; arranging the pick up and delivery of goods; some record keeping; ensuring compliance with OH&S regulations; and ensuring the maintenance of the vehicles.
On the totality of the evidence, and on the Tribunal’s findings made above, the Tribunal is satisfied that the position associated with the nominated occupation is genuine. For these reasons 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 instrument.
The applicant has provided a signed contract of employment dated 15 June 2017. For these reasons 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) and (12).
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 ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
In this case, the nominated occupation is Transport Company Manager ANZSCO 149413. This occupation is classified as Skill Level 1 in the ANZSCO. All occupations which are classified in the ANZSCO as Skill Level 1 are specified for the purposes of the occupational exemptions in s 140GBC(4)(b) of the Act: IMMI 13/137. Furthermore, the position description for the nominated position indicates that the minimum required qualifications for the position are a bachelor degree or higher qualifications relevant to the nominated position. In the circumstances, the skill and occupation exemptions to the labour market testing requirements in s 140GBC(3) of the Act are met and the nominee is exempt from having to satisfy the labour market testing requirements in s 140GBA of the Act.
For these reasons, the labour market testing requirements in s 140GBA of the Act are not applicable.
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.
Namoi Dougall
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:
d(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 3164

16 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies