LAF COLLEGE OF VOCATIONAL EDUCATION PTY LTD (Migration)

LAF COLLEGE OF VOCATIONAL EDUCATION PTY LTD (Migration) [2017] AATA 1562 (25 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  LAF College of Vocational Education Pty Ltd
CASE NUMBER:  1602023
DIBP REFERENCE(S):  BCC2015/3274769
MEMBER:Danica Buljan
DATE:25 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 25 August 2017 at 4:02pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) – Genuine position – Loss of right to a hearing – Approval as standard business sponsor has ceased – Applicant did not provide updated information on nominated position
LEGISLATION
Migration Act 1958, ss 5(1), 140E, 140GB, 140GBA, 359, 359A, 359C, 360, 363, 363A
Migration Regulations 1994, r 1.03, r 2.72, r 2.73
CASES
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596
Yang v Minister for Immigration and Citizenship [2010] FMCA 890

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 February 2016 to refuse to approve the applicant’s nomination under section 140GB of the Migration Act 1958 (‘the Act’) and regulation 2.72 of the Migration Regulations 1994 (‘the Regulations’).
The applicant applied for approval on 7 November 2015. A nomination of an occupation for a Subclass 457 visa is made under section 140GB of the Act, and regulation 2.73 of the Regulations. Subregulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in section 140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the requirement in paragraph 2.72(10)(f) that the position associated with the nominated occupation is genuine.
On 19 February 2016 the applicant applied to the Tribunal for review of the delegate’s decision, and it included a copy of the primary decision record with the application for review.[1] The applicant was represented in relation to the review by its registered migration agent.
[1] AAT case file 1602023 (T1), f.1-6
The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]
[2] D1 - Departmental file BCC2015/3274769, folio numbered 1-63
[3] T1 - AAT case file 1602023, folio numbered 1-30
On 3 July 2017 the applicant was invited to attend a callover scheduled for 31 July 2017 to discuss the application for review.[4]
[4] T1, f.14-16
The applicant’s registered migration agent and its director, Ms Quynh Luu Vo, attended the callover on behalf of the applicant on 31 July 2017. They confirmed that the applicant had nominated a ‘Systems Administrator’ (ANZSCO Code 262113) in its application, and that the applicant’s approval as a standard business sponsor had ceased after 16 July 2017.
During the callover the Tribunal outlined for the parties the updated information it required for the purposes of the application for review, and provided them with an information sheet for this purpose. The Tribunal also explained the procedural steps that would follow the callover, including the consequences for the applicant if it failed to respond to any invitation the Tribunal issued within the prescribed period.
The Tribunal Combined Invitation to Comment and Provide Information
As explained to the parties appearing on behalf of the applicant at the callover held on 31 July 2017, on 1 August 2017[5] the Tribunal invited the applicant under section 359A of the Act to comment on / respond to certain information before it. In particular, departmental records relating to the applicant’s approval as a standard business sponsor from 16 July 2014 to 16 July 2017. In particular, the letter stated that this information was relevant to the review because the Tribunal might find that the applicant did not meet the requirements of subregulation 2.72(4) of the Regulations.
[5] T1, f.23-29
In the same letter, and under subsection 359(2) of the Act, the Tribunal also invited the applicant to provide updated information that demonstrated that it met all the requirements of regulation 2.72 at time of the Tribunal's decision. The invitation included a copy of this regulation to facilitate the applicant’s response.
The Tribunal letter also stated that, unless the applicant sought and was granted an extension of time for this purpose, the requested comments/response and information should be received by the Tribunal by 15 August 2017.
However, the applicant did not provide the requested comment/response, or the requested information, within the period prescribed for this purpose. Nor has there been any further communication from either the applicant or its representative in relation to the application for review at the time of the Tribunal’s decision.
The Loss of the Right to a Hearing before the Tribunal
The Tribunal notes that its combined invitation (dated 1 August 2017) was sent to the last address for service provided by the applicant in connection with the application for review.[6]
[6] T1, f.29-30
As the applicant has failed to provide its comments/response and the requested information before the time for giving it has passed, subsections 359C(1) and (2) apply and the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s comments/response or information.
Further, as subsections 359C(1) and (2) apply to the applicant, subsection 360(3) states that it is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something it is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.
In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.[7]
[7] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Accordingly, as the applicant failed to give the comments/response and information requested within the prescribed period, it has lost its right to appear before the Tribunal to give evidence and present arguments relating to the application for review.
The Tribunal Discretion to Adjourn the Review
Notwithstanding the applicant’s failure to respond to its combined invitation, the Tribunal has considered whether the circumstances of this case would warrant the exercise of its discretion under subsection 363(1)(b) of the Act to adjourn the review. This would be for the purpose of allowing the applicant additional time in which to provide information and submissions in support of its application for review.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[8] and Manna v Minister for Immigration and Citizenship[9] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[10] regarding the reasonableness of any request for an adjournment, as well as the recent Full Federal Court decision in Minister for Immigration and Border Protection v Singh[11] which also considered this issue.
[8] [2002] FCA 617
[9] [2012] FMCA 28
[10] [2013] HCA 18 (8 May 2013)
[11] [2014] FCAFC 1 (4 February 2014)
In this case, the applicant provided a copy of the primary decision record with the application for review it lodged on 19 February 2016. Accordingly, the Tribunal observes that the applicant has been aware of the reasons for the refusal of its application for approximately 18 months at the time of decision.
In addition, the Tribunal notes that at the callover held on 31 July 2017 it discussed with the applicant’s representative and director the updated information it required for the purposes of the application for review. The Tribunal further observes that the combined invitation it sent to the applicant on 1 August 2017 formally drew the applicant’s attention to the adverse information before it, as well as the information it required for the purposes of the application for review.
Although the applicant was represented by a registered migration agent, who might reasonably be expected to understand the consequences for the application for review if the applicant did not respond to the combined invitation within the time allowed for this purpose, there was no response from either the applicant or its representative. Correspondingly, the applicant and/or its representative also did not request an extension of time, or an adjournment of the review, for this purpose.
As a result, there has been no communication from either applicant or its representative with the Tribunal since they attended the callover held on 31 July 2017. The Tribunal further notes that in Ghori v Minister for Immigration and Citizenship[12], Perram J held that it was reasonable for the Tribunal (differently constituted) in that case, in light of that applicant's past applications for extensions of time, to “eventually to put an end to the review process”.
[12] [2011] FCA 759 at [22]
In the present matter, the applicant has not repeatedly applied for extensions of time. However, the applicant has not responded to the Tribunal invitation to comment on / respond to adverse information, or provided the information the Tribunal requested that would address the issues that are central to this application for review. Given the time that has elapsed since the application for review was lodged on 19 February 2016, the Tribunal considers the sentiment expressed by Perram J in Ghori's case to have relevance to the exercise of its discretion under subsection 363(1)(b) of the Act.
Accordingly, in these circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues in the application for review. As a consequence, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the requirements of regulation 2.72 and section 140GB.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under the Act and Regulations there are three stages in sponsoring an employee from overseas in the subclass 457 visa programme:
·Sponsorship: An 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.[13]
[13] See PAM3 - MIGRATION REGULATIONS - SCHEDULES > Temporary Work (Skilled) visa (subclass 457) - nominations
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.
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in regulation 2.72 and, for nomination applications made from 23 November 2013, section 140GBA have been met.[14]
[14] Subsection 140GB(2)
Nominator is a standard business sponsor or party to a work agreement
Subregulation 2.72(4) requires the Tribunal to be satisfied that the applicant is either a standard business sponsor, or a non-Ministerial party to a work agreement.
‘Standard business sponsor’ is defined in regulation 1.03 as a person who is an approved sponsor in relation to the standard business sponsor class by the Minister under subsection 140E(1) of the Act. ‘Approved sponsor’ is relevantly defined in subsection 5(1) of the Act as a person who has been approved as a sponsor and whose sponsorship approval has not been cancelled or ceased to have effect, or a non-Ministerial party to a work agreement.
Departmental records indicate that the applicant was approved as a standard business sponsor from 16 July 2014 to 16 July 2017.[15] On 1 August 2017 the Tribunal invited the applicant to comment on/ respond to the fact that its approval as a standard business sponsor had ceased after 16 July 2017 and, therefore, it did not meet the requirements of subregulation 2.72(4). However, neither the applicant nor its representative has done so.
[15] T1, f.13
As a result, the Tribunal finds that at the time of its decision the applicant no longer has approval as a standard business sponsor and, therefore, it is not a standard business sponsor as required by subparagraph 2.72(4)(a). In addition, there is little in the evidence before the Tribunal to indicate that the applicant is a party to a work agreement for the purposes of subparagraph 2.72(4)(b).
Accordingly, the Tribunal finds that the requirements of subregulation 2.72(4) are not met.
Position must be genuine
Paragraph 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The applicant indicated in its business nomination application that it was a registered training organisation operating at four locations in Melbourne and Geelong. It also nominated the occupation of ‘Systems Administrator’ (ANZSCO Code 262113) for the purposes of the application.[16]
[16] D1, f.26 & 34
In addition, the applicant provided a submission (dated November 2015[17]) in support of its claims that the position associated with the nominated occupation is genuine. This submission included a profit and loss statement as at 30 June 2015[18], an organisational chart[19], a position description[20] and an executed contract of employment (dated 26 August 2015[21]). The applicant also provided extracts from Payscale and job advertisements from seek.com dating from August 2015[22] in support of its business nomination application.
[17]    D1, f.31-43
[18]    D1, f.39
[19]    D1, f.37
[20]    D1, f.22
[21]    D1, f.3-12
[22]    D1, f.14-21
However, the Tribunal observes that the applicant has not provided any further information regarding the nominated position since it lodged the application for review on 19 February 2016. This is despite the Tribunal explaining the importance of updated and current information at the callover held with the parties on 31 July 2017, and in the invitation it issued under subsection 359(2) of the Act on 1 August 2017. In these circumstances, the Tribunal observes that the applicant appears to have lost interest in the application for review.
As a result, at the time of decision in 2017 there is little in the evidence to indicate the current scale and size of the applicant’s business operations, its need for the nominated position and its financial viability, including its ability to pay the nominee the salary it has proposed for the nominated position.
Accordingly, given that the evidence before the Tribunal is limited to the applicant’s circumstances in 2015, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine at the time of its decision in 2017.
For these reasons, the Tribunal also finds that the requirements of paragraph 2.72(10)(f) and, therefore, subregulation 2.72(10), are not met at the time of its decision.
CONCLUSION
Accordingly, given its findings that the applicant does not meet subregulations 2.72(4) and (10), which are essential criteria for the nomination to be approved, it is unnecessary for the Tribunal to determine whether the applicant meets the remaining criteria set out in regulation 2.72.[23]
[23] The Federal Court has confirmed that once the Tribunal has established that at least one essential criterion had not been satisfied, it is not obliged to make findings in relation to any other criteria: see Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596.
Therefore, for the above reasons, the Tribunal is not satisfied that the applicant meets all the applicable criteria prescribed in the Regulations for the nomination to be approved. As a result, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Danica Buljan
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(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 that:
(i)       are provided; or
(ii)      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.

[2017] AATA 1562

25 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction