KANU, JULIANA MOMOA INTERIOR HOME SERVICES (Migration)

KANU, JULIANA MOMOA INTERIOR HOME SERVICES (Migration) [2019] AATA 2824 (29 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  KANU, JULIANA MOMOA INTERIOR HOME SERVICES
CASE NUMBER:  1702263
HOME AFFAIRS REFERENCE:                BCC2016/2944567
MEMBER:Lilly Mojsin
DATE:29 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 29 May 2019 at 8:45am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Customer Service Manager – genuine position – nominee also husband of applicant – business needs of nominating employer – annual turnover – staffing level – no record of payment of wages – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 January 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 5 September 2016.
Under the Act and Regulations there are three stages in sponsoring an employee from overseas in the subclass 457 visa programme:
·Sponsorship: The employer applies for approval as a standard business sponsor;
·Nomination: The employer nominates an occupation for a prospective or existing subclass 457 visa holder; and
·Visa application: The person nominated to work in the nominated occupation applies for the subclass 457 visa.
In the standard business sponsor context, the nomination is the second phase of this three-stage business sponsorship scheme under the Act and the Regulations. Specifically, nomination is the process through which a standard business sponsor, or a non-Ministerial party to a work agreement, nominates for approval an occupation which a visa holder, visa applicant, or proposed visa applicant will undertake. This ensures that the standard business sponsor, or party to the work agreement, agrees to be the sponsor for that particular visa holder, visa applicant, or proposed visa applicant.
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)(f) as the delegate was not satisfied the position associated with the nominated occupation was genuine.
The applicant appeared before the Tribunal on 23 May 2019 via video link to Cairns to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Tokile Kanu, who is also the husband of the applicant.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present review is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in 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.
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The intention of this provision is to ensure that positions nominated are in skilled occupations and are genuinely needed by the nominating employer.
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 Act and Regulations do not define the term 'genuine' for the purposes of paragraph 2.72(10)(f). The Tribunal notes that the Macquarie Dictionary Online defines the word 'genuine' to mean to “being truly such; real; authentic; properly so called; sincere; free from pretence or affectation”.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations.
The Tribunal notes that the departmental policy in the 'Procedures Advice Manual 3' ('PAM3') provides the following guidance in terms of what is required by paragraph 2.72(10)(f):
Regulation 2.72(10)(f) provides that the Minister must be satisfied that the position associated with the nominated occupation is genuine.
This is considered an important regulatory criterion in terms of ensuring that the intention of the subclass 457 program is met – that is, it is used to address temporary skill shortages, for approved occupations outlined in the relevant legislative instrument, in circumstances where an Australian worker cannot be sourced. It was introduced to provide the Department with the ability to refuse a nomination if there were indicators that a semi-skilled position had been 'dressed up' to appear more skilled in order to facilitate a visa for a person.
To avoid doubt, the requirement is not that the position itself must be genuine or 'needed', rather it is that the position associated with the nominated occupation must be genuine. That is, the position must exist and also be what it purports to be.
The applicant is a Cleaning business intending to nominate a Customer Service Manager [ANZSCO 149212] states that this position requires AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2). At least three years of relevant experience may substitute for the formal qualifications. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre
149212 CUSTOMER SERVICE MANAGER
Alternative Titles:
Client Service Manager
Service Manager

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
Skill Level: 2
Documentation provided to the Department in support of the nomination application included a job description that sets out the main job tasks and responsibilities of the position, an organisation chart and a signed employment contract.
The applicant stated in her application that the nominated position “Customer Service Manager ” in her business became an important strategic move to realign the Company in the face of strong business growth in terms of an overwhelming increase in its cliental base to levels over and above handled by a one man operational team. The applicant has well over 30 regular clients. The aim of a Customer Service Manager position was to bring in a dedicated “eye” into the operations of the company whose interest was purely to service the client base by way of ensuring the best possible service was delivered to the customer, and the customer was always happy. These were the tasks that were often neglected by the Business Manager. Awarding important positions to family members with strong business credentials is a trend often taken by businesses in the first tenures of the operations of the business.
Evidence provided to the Tribunal relevantly included:
·Letter from Acumen Accounting and Advisory stating that according to the turnover for nine months to 31 March 2019 the entity has the capacity to pay a gross wage of $65,000 to the nominee
·Profit and Loss Statement for the applicant from 1 July 2018 to 31 March 2019 prepared by Acumen Accounting and Advisory showing an income of $75,042 expenses of $10,815 with a net profit of $64,227
·Two Confirmation of student enrolment for two children of applicant
·BAS statement 1 April 2018 to 30 June 2018
·Income Tax Return with tax estimate for the applicant showing a taxable income of $20,497
·Income Tax Return of the applicant 2018 showing a gross income of $70,203
·Market salary research for customer service manager showing an average salary of $60,352
·ASIC search
·Organisation chart
·List of regular clients and contracts
·Advertisement
At the Tribunal hearing the nominee stated to the Tribunal that he does not work for the applicant, 5 days per week, he works part time when needed. He does not assist with the cleaning.
The applicant, who stated that she started the business at the end of 2013, said that she needed a customer service manager as he knows how to do business marketing and to understand industrial cleaning and someone with good management. The applicant does the cleaning. She initially said that she has 2 permanent and some casual people working with her. The permanent people are Perry and Paul, they are Australian citizens or residents. When put to the applicant that their wages were not shown in the financial documents provided to the Tribunal, she said that their wages are not shown as they are too low. They come sometimes and work with her. She pays them petty cash.
She is doing the cleaning. She answers the phone and get some calls and cannot run around to do the job. Asked how the family is supported, the applicant said their income is from the business. It was put to the applicant that the financial information provided did not suggest that anyone was paid a salary for doing the cleaning which is the activity required to be funded in order to generate an income.
Post hearing the applicant provided the following documents to the Tribunal:
·Document dated 29 December 2017 from Beaches addressed to James Interior House Care
·Breakdown of Earning from January to March 2019
·Contractor Appointment Form from Cairns Platinum Realty
·Financial Appraisals and Forecast
·Letter from Cairns Quality Cleaning that applicant is a major cleaning contractor for them. It opines that the applicant and its team of workers are dedicated to their tasks.
REASONS AND FINDINGS
The issue in the present review is whether the applicant meets the criteria for approval of the nomination. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The intention of this provision is to ensure that positions nominated are in skilled occupations and are genuinely needed by the nominating employer.
Letter from Cairns Quality Cleaning that applicant is a major cleaning contractor for them. It opines that the applicant and its team of workers are dedicated to their tasks. Despite her assertions that the cleaning business pays employees to do the cleaning, the applicant was unable to show either by BAS statements or profit and loss statements or a taxation return that the applicant was able to pay any cleaning staff teams a salary or even petty cash.
Having considered the ANZSCO description for the nominated occupation the Tribunal is not satisfied the position required by the applicant is that of a Customer Service Manager. The applicant’s business turnover for 2018 was $75 042 and after payment of expenses the net income to the applicant was $20 497. The turnover from July 2018 to 30 March 2019 was $70 203 and the applicant’s accountant has opined that there will be sufficient funds available to pay the nominee’s salary. Asked how much tax and super was paid in last 9 months from 1 July 2018, the applicant said that at the moment the wages of the cleaning staff are less than the required amount that is needed to pay tax. They have not paid any tax or super. They pay money by cash. Asked why they pay by cash, the applicant said they pay as the job comes and goes and payments are petty cash. The Tribunal notes that none of the financial statements, including the accountant’s letter, show payment for cleaners by way of petty cash, and even small wages are a deduction for the business income. Nor does the accountant’s letter suggest that any money would be available to pay for cleaners or provide a salary for the applicant.
The applicant has submitted, post hearing, a letter from the applicant marked as prepared by the applicant and the nominee. That letter projects the income for the applicant for 2019 to be $100 542 and opines that the nominated position would create 2 working teams to be supervised by the nominee. This growth would occur through a growth in the regular client base and a growth in the corporate client area for big cleaning contracts. It is also intended to have partnerships with other cleaning companies. The Tribunal places no weight on this submission. It does not address the lack of payment of staff to date or the lack of payment of income tax and superannuation.
A letter dated 29 December 2017 from Beaches was addressed to the applicant and the nominee and James Interior House Care. The Tribunal places no weight on this letter as it is not addressed to the applicant, but James Interior House Care. A Contractor Appointment Form from Cairns Platinum Realty does not purport to guarantee any income for the applicant or even on going work and is merely a contractor appointment form, required by REIQ, outlining rights and obligations when undertaking work for the real estate agency.
Whilst the applicant and the nominee have assured the Tribunal that they have contracts that will increase turnover to 30 June 2019 and beyond, as they have changed their business model from being a franchisee, the applicant did not produce any contracts or agreements that would suggest that the business’ turnover was about to increase so that the business was in a position to pay the salary of a team of cleaners and a Customer Service Manager. The Tribunal therefore rejects the applicant’s claims that the applicant has demonstrated strong business growth by an overwhelming increase in its cliental base to levels over and above handled by a one man operational team.
The Tribunal accepts that businesses benefit from having Customer Service Managers and the Tribunal also accepts that in the past 12 months the applicant’s business income has increased. It is difficult to imagine how the business of the applicant can be operated by the nominee performing the duties of a customer service manager as ANZSCO defines that role, detailed above, and no other person being employed to complete the income generating work, the cleaning, other than the applicant herself.
The Tribunal is not satisfied that the applicant has been entirely honest in her evidence to the Tribunal regarding the running of the business and her explanation of the nominated position. The applicant has stated that she has cleaners employed working in the business with her, she has provided a letter from Cairns Quality Cleaning. That letter refers to the applicant’s teams working for the company but the applicant has not shown any deductions in her financial records for those teams, petty cash or otherwise. The Tribunal does not accept therefore that the applicant employs anyone. The nominee works in the business, part-time. The nominee does not claim to assist with the cleaning but as the applicant does not employ anyone to assist her with the cleaning the Tribunal is unable to be satisfied that the full-time position of Customer Service Manager exists and that it is what it purports to be.
In light of the above, the Tribunal is satisfied that the position associated with the nominated occupation is solely to facilitate the stay of the applicant, nominee and family in Australia rather than to fill a genuine vacancy or skill shortage.
The Tribunal is not satisfied that the position associated with the nominated occupation is genuinely needed by the nominating employer or that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Lilly Mojsin
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.

[2019] AATA 2824

29 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice