LIFETIME INTERNATIONAL.COM PTY LTD (Migration)

LIFETIME INTERNATIONAL.COM PTY LTD (Migration) [2018] AATA 4744 (6 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Lifetime International.Com Pty Ltd
CASE NUMBER:  1707937
HOME AFFAIRS REFERENCE(S):           BCC2016/1784709
MEMBER:K. Chapman
DATE:6 December 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 06 December 2018 at 9:56am
CATCHWORDS
MIGRATION – nomination of an occupation (employer nomination) – position of Customer Service Manager – genuine position classification – occupation description and tasks – growth in business and staff – customer service policy – marketing and compliance duties – no prescribed criteria – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 359
Migration Regulations 1994, Schedule 2 cl 457.223(4)(a); r 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 23 March 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, Lifetime International.Com Pty Ltd (also ‘the nominator’), applied for approval on 19 May 2016. The applicant nominated Ms Passorn Woranunthakul (‘the nominee’) in the occupation of Customer Service Manager. 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. 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) due to a lack of satisfaction that the position associated with the nominated occupation of Customer Service Manager is genuine. On 12 April 2017, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.
On 29 August 2018, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response the Tribunal received material including, but not limited to, written submissions, Customer Service Policy Guidelines, an organisational chart, job description, nominee’s resume, an employment contract, financial records, ASIC records, Standard Business Sponsorship Approval Notice, an IELTS result, letters of support, nominee qualifications, customer service manager advertisements, photographs, travel documents, the organisation’s program descriptions, a market salary survey report and an ABS report. All submitted material has been duly considered by the Tribunal.
The applicant, through its Director and Deputy CEO Ms Eseta Tupuola, appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Johnson Oyelodi. Ms Tupuola confirmed to the Tribunal that there were no other witnesses providing oral evidence. The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nominated person in the nomination application is Ms Passorn Woranunthakul. She is nominated pursuant to s.140GB of the Act on the basis that she will work in the occupation of Customer Service Manager. Accordingly, the Tribunal is satisfied that the applicable provision in this case is r.2.72 as in force immediately before 18 March 2018.
A key consideration in the present matter is whether the applicant meets the requirements of r.2.72 (10)(f).
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 applicant nominated the occupation of Customer Service Manager, which is coded as number 149212 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The ANZSCO provides an indicative list of tasks that a person fulfilling the role of a Customer Services Manager would usually perform. These are referred to in the Departmental delegate’s nomination refusal decision, a copy of which was provided by the applicant to the Tribunal.
In determining whether the position which the applicant seeks to fill can genuinely be described as a Customer Service Manager role, the Tribunal has had regard to the description and tasks of the occupation as set out in the ANZSCO.
The nominated occupation of Customer Service Manager is in the Unit Group 1492 ‘Call or Contact Centre and Customer Service Manager’. The ANZSCO sets out the indicative skill level and tasks for a Customer Service Manager as follows:
UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS

CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
…
At least three years of relevant experience may substitute for the formal qualifications listed above. 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
Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager
…

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.
The applicant, Lifetime International.Com Pty Ltd, is a company involved in providing vocational education and training to domestic and international students. It is a Registered Training Organisation (RTO). A submitted job description dated 17 March 2016, signed by a director of the applicant company, outlines that the nominee’s duties and responsibilities are as follows:
•Provide customer services in a timely and culturally appropriate manner;
•Act as a liaison between customers and management of the College;
•Analyses complaints from customers and provide adequate resolutions for management consideration;
•Track proposed resolutions and follows up with customers in a timely manner;
•Prepare documents and reports for management;
•Conduct training programs for peers in good customer service in particular relating to Asian customers and also provide Cross Cultural training for staff;
•Develops and maintains vast knowledge of educational products and services being offered by the College;
•Conduct surveys regarding products and customer service experiences;
•Provide ethically professional advise/feedback to management to improve overall customer experience;
•Liaise with other organisations, agents and respond to customers; and
•Set ground rules and expectations by following Lifetime International College’s policy and procedures for dealing with customers and resolve problems between staff and customer as they arise.
The applicant nominated the occupation of Customer Service Manager, which is coded as number 149212 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The ANZSCO provides an indicative list of tasks that a person fulfilling the role of a Customer Services Manager would usually perform. These are referred to in the Departmental delegate’s nomination refusal decision, a copy of which was provided by the applicant to the Tribunal.
In determining whether the position which the applicant seeks to fill can genuinely be described as a Customer Service Manager role, the Tribunal has had regard to the description and tasks of the occupation as set out in the ANZSCO.
The applicant submitted a Market Salary Survey Report which indicates that the market salary rate for the nominated occupation would be in the vicinity of $40,000 to $66,248 and this range had been determined through research utilising job vacancy websites. The applicant has most recently offered the nominee an annual salary of $65,000 as noted in a submitted copy of an employment contract. A recently submitted organisational chart indicates that the nominee reports to the Deputy CEO, Ms Eseta Tupuola. Reporting to the nominee’s position on the organisational chart are two positions entitled ‘Administrator/Customer Services office/LMS’, a position entitled ‘Receptionist/Student Support services’, one entitled ‘Marketing Officer/Student Support Officer’ and an ‘Assistant Marketing’ position.
The oral evidence of Ms Eseta Tupuola, Director and Deputy CEO of the applicant, may be summarised as follows. The applicant believes the decision to refuse the nomination is wrong because the nominee’s position is necessary due to growth in staff and to enable the business to function better. Ms Tupuola outlined that the applicant provides vocational educational services as a RTO mainly to international students from South East Asian countries. She confirmed that part of the nominee’s role is to increase the number of students from that target market. In doing so the nominee uses her own cultural background and language skills. Ms Tupuola stated that the nominee engages with students and parents “in marketing terms.”
Ms Tupuola explained that the nominee meets regularly with students and assists with the implementation of the applicant’s Complaints and Appeals Policy. She confirmed that this policy was created by the Committee controlling the business of the applicant and was implemented at the inception of the applicant’s business. According to Ms Tupuola, the nominee was not involved in the creation of that policy, although she would implement changes to it if required.
Ms Tupuola outlined that the nominee was employed by the applicant between March and May 2016 before her Bridging Visa work conditions changed. The nominee was re-employed in around August or September 2018 following the grant of work rights to her. Ms Tupuola confirmed that the nominee had been employed in the occupation of Customer Service Manager during both periods of employment with the applicant.
Ms Tupuola advised that the duties and responsibilities of the nominee were to provide customer service on behalf of the applicant by “mainly” using her cultural and language skills “in marketing to parents.” The nominee is also said to provide support to students regarding any complaints they might make in accordance with the Complaints and Appeals Policy. Additionally, Ms Tupuola indicated that the nominee provides support during regulatory audits conducted by the Australian Skills Quality Authority (ASQA) in relation to customer service, in particular by reviewing student satisfaction surveys. Ms Tupuola also advised that the nominee engages with education agents, both onshore and offshore, in regards to matters such as the regulatory framework in Australia as it pertains to the marketing of services. The nominee is also said to be involved in assisting students if they have problems with visa applications. Ms Tupuola confirmed to the Tribunal that the nominee had a role in the marketing of services in conjunction with the education agents.
When asked by the Tribunal to outline the staffing arrangements of the applicant, Ms Tupuola referred to the most recent organisational chart submitted (at page 168 of the Tribunal file) and advised that the nominee supports the reception, administration and marketing teams. She indicated that the two positions entitled ‘Administrator/Customer Services office/LMS’ report to the nominee and their roles are to issue letters of offer and confirmations of enrolment (COE) to students in addition to performing administrative tasks such as filing. The one position entitled ‘Receptionist/Student Support services’ also reports to the nominee and their role is to perform front reception tasks including collection of student rolls from the trainers. The positions entitled ‘Marketing Officer/Student Support Officer’ and ‘Assistant Marketing’ also report to the nominee and their roles involve marketing activities. Ms Tupuola advised that all of the aforementioned roles report to the nominee in order to enhance the quality of service to customers (that is, the students of the applicant).
When asked by the Tribunal which staff provide customer service for the applicant, Ms Tupuola indicated that it is “mainly” the nominee who does so with the support of the reception, administration and marketing teams. When asked by the Tribunal if the nominee has direct client interaction, Ms Tupuola responded “that’s correct.” She added that the nominee has monthly meetings with the education agents and participates in the training of staff regarding marketing. According to Ms Tupuola, the applicant conducts marketing orientation events at which the nominee liaises with the parents of prospective overseas students to discuss issues with their children studying in Australia.
Ms Tupuola confirmed to the Tribunal that the submitted two page ‘Customer Service Policy’ and the ‘Introductory Pamphlet’ were created by the marketing team some time ago and without input from the nominee. The Tribunal raised with the applicant that the submitted Customer Service Policy appeared to be a very basic document and the Introductory Pamphlet appeared to be concerned with marketing and compliance activities which might tend to suggest that the nominee will not perform tasks commensurate with the occupation of Customer Service Manager, inviting her comment. Ms Tupuola responded that the nominee refers to the Customer Service Policy if any problems arise and that the applicant could expand the policy in order to satisfy the Department if necessary. With respect to the Introductory Pamphlet, Ms Tupuola advised that it is used for the marketing of courses with the nominee ensuring the trainers are properly qualified to deliver them, she ensures the course pricing is correct, she verifies the students are aged at least 18 years and she also ensures that the students have the correct English language test scores from IELTS as is relevant to their chosen courses.
The Tribunal raised with the applicant that several documents including written submissions and a letter from Ms Tupuola dated 12 March 2017 indicate that a large portion of the nominee’s role is connected to marketing activities, including the engagement of new students, and compliance activities which might tend to suggest that the nominee will not perform tasks commensurate with the occupation of Customer Service Manager. Ms Tupuola responded that the requirement for the Customer Service Manager role arises due to new regulatory requirements imposed by ASQA. She added that marketing to the South East Asian market is important to the applicant’s business and in order for the business to expand the services of the nominee are required.
The Tribunal raised with the applicant that a task reflected in ANZSCO regarding the role of a Customer Service Manager is ‘developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided’, asking if the nominee performed such a task. Ms Tupuola advised that the nominee provides feedback and support to the team to ensure policies meet legislative requirements. She noted that the nominee has been a student herself and understands how to satisfy ANZSCO requirements. The Tribunal raised with the applicant that the basic nature of the Customer Service Policy which the nominee apparently helps implement, in conjunction with the other documentary evidence focused on marketing and compliance, might tend to suggest that the nominee is not performing tasks commensurate with the role of Customer Service Manager as defined in ANZSCO, inviting her comment. Ms Tupuola replied that the nominee will work with others to update the policies to comply with the law.
The Tribunal raised with the applicant that the initial organisational chart submitted to the Department in connection with the application for nomination indicates the nominee has one Marketing Officer, one International and one Student Support worker reporting to her. The updated organisational chart indicates the nominee has two Customer Service Officers, one receptionist, a Marketing Officer and an Assistant in Marketing. This might tend to suggest that the nominee’s role is more linked with Marketing and that the organisational chart has been updated primarily to enhance the application for review. The applicant was invited to comment and Ms Tupuola responded that some staff have departed the business hence the update to the organisational chart. She added that due to the growth of the South East Asian market, combined with the enhanced regulatory approach of ASQA, the applicant requires the position of the Customer Service Manager. Ms Tupuola confirmed that the list of the nominee’s duties was prepared internally by the applicant and that the nominee is not related to anyone involved in the running of the applicant’s business.
The Tribunal took oral evidence from Mr Johnson Oyelodi, who is a consultant to the applicant, which may be summarised as follows. Mr Oyelodi advised that he provides advice in relation to the recruitment of overseas students and in relation to compliance with the regulatory requirements of ASQA. He indicated that the Customer Service Manager was necessary due to the regulatory requirements of ASQA who view students as customers. Mr Oyelodi advised that a good Customer Service Manager is required by the applicant to build relationships with the students, adding that the nominee’s language skills would assist in this regard. Mr Oyelodi outlined the nominee’s duties and responsibilities as liaising with students and education agents, managing the Complaints and Appeals process and ensuring the customers (students) fully understand the courses they are purchasing. Mr Oyelodi advised that he permitted the nominee to perform voluntary work in his business when she was precluded from participating in paid employment with the applicant. The Tribunal invited the applicant to comment following this evidence and Ms Tupuola indicated the nominee is involved in implementing the Complaints and Appeals Policy and that this policy has been with the business since its inception. The Tribunal has carefully considered Mr Oyelodi’s oral evidence and finds it is consistent with that of Ms Tupuola’s. Accordingly, the Tribunal draws no adverse inference from the oral evidence of Mr Oyelodi.

The Tribunal raised with the applicant that it appeared many of the tasks of the nominee were related to marketing and compliance and this might tend to suggest the nominee is not performing the role of a Customer Service Manager, inviting her comment. Ms Tupuloa responded that the Customer Service Manager is required to make sure the recruiting of students complies with regulatory requirements. When asked to elaborate on the management duties of the nominee, Ms Tupuloa indicated she liaises with staff to ensure customer expectations are met. Ms Tupuloa added that the nominee brings her cultural background to the role to ensure the marketing and administration teams ensure procedures are followed.
The representative made oral submissions which may be summarised as follows. In relation to the Customer Service Policy he submitted that references are made therein to legislation and that the Customer Service Manager manages the Customer Service Team in order to comply with the regulatory requirements. It is contended that the Customer Service Manager is essential to maintain compliance with the regulatory requirements pertaining to RTO’s. The representative also contended that Ms Tupuloa in her oral evidence misinterpreted the question concerning the nominee’s interaction with customers, contending that she does so through other staff. The Tribunal does not accept this contention given Ms Tupuloa gave clear oral evidence on the role of the nominee and as she was invited to comment following this submission of the agent and did not provide any evidence to support the contention of the representative. Immediately prior to the conclusion of the review hearing, the representative and the applicant confirmed they had no more evidence to provide to the Tribunal.
CONCLUSION
The Tribunal has carefully considered the evidence before it, but is not satisfied that the position which the applicant seeks to fill is in fact a Customer Service Manager role as described in ANZSCO.
The Tribunal acknowledges that the applicant’s business is a going concern and that the nominee fulfils a role in the business. However, as indicated, the position that the applicant seeks to fill is not, in the view of the Tribunal, a Customer Service Manager role.
The role the applicant seeks to fill involves many tasks devoted to marketing (including the engagement of new students) and compliance with the regulatory requirements applicable to RTO’s according to the oral evidence of Ms Tupuloa. The nominee has not to date been involved in developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided in any meaningful fashion. Rather, the evidence indicates her focus has been on the implementation of various policies and procedures, not the development or review of them.
Further, when the nominee’s involvement with the implementation of customer service policies, programs and procedures is considered, the evidence is suggestive of such documentation being of a basic standard not commensurate with the higher order tasks typically associated with the role of a Customer Service Manager as defined in ANZSCO. The oral evidence of Ms Tupuloa indicates that the nominee regularly interacts in a direct fashion with the clients of the applicant with a view to marketing its services. For reasons previously expressed, the Tribunal does not accept the oral submission of the representative seeking to cast doubt upon the aforementioned oral evidence. Accordingly, the Tribunal forms the view that the nominee is significantly involved in marketing activities.
The Tribunal does not accept that the nominee’s role in implementing compliance procedures and policies, such as the Complaints and Appeals Policy, is commensurate with the role of a Customer Service Manager as defined in ANZSCO given its lack of nexus to matters of customer service. Nor does the Tribunal accept that the nominee’s management of the five employees previously outlined is commensurate with the Customer Service Manager role given the primarily administrative and marketing focus of the majority of the tasks performed in these subordinate positions.
Whilst the Tribunal accepts that the nominee performs some of the tasks of a Customer Service Manager as defined in ANZSCO, her significant focus on marketing activities (including direct engagement with prospective clients in relation to them) and regulatory compliance matters, strongly suggest she is not fulfilling the majority of the duties of the nominated occupation. The Tribunal so finds.
Accordingly, the Tribunal does not accept that the nominee’s duties are commensurate with the ANZSCO employment tasks of a Customer Service Manager. The Tribunal is therefore not satisfied that the position can genuinely be classified as a Customer Service Manager. Therefore, the Tribunal is not satisfied 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 outlined, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
K. Chapman
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2018] AATA 4744

6 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction