Lin's Flooring Pty Ltd (Migration)

Lin's Flooring Pty Ltd (Migration) [2020] AATA 2486 (1 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Lin's Flooring Pty Ltd
CASE NUMBER:  1802425
HOME AFFAIRS REFERENCE(S):          BCC2017/603878
MEMBER:K. Chapman
DATE:1 April 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 01 April 2020 at 8:29am

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination – occupation is subject to an inapplicability condition – position associated with the nominated occupation is not genuine – insufficient turnover – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140GB, 359
Migration Regulations 1994, rr 2.72, 2.73, 5.19
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 Home Affairs on 11 January 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (‘the Act’) and r.2.72 of the Migration Regulations 1994 (‘the Regulations’).
The applicant, Lin’s Flooring Pty Ltd, applied for approval on 14 February 2017. The applicant nominated Ms Wenjuan Liu (‘the nominee’) in the occupation of Accountant (General). This occupation is coded as number 221111 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). Ms Liu was previously a director and a shareholder of the applicant company.
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 nomination was not approved on the basis that the applicant failed to satisfy r.2.72(10)(aa) because the delegate was satisfied that the nominated occupation is subject to an inapplicability condition (or ‘caveat’) pursuant to Instrument IMMI 17/060. On 31 January 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.
On 8 January 2020, 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, taxation records (including BAS), organisation chart (list of staff), ASIC records, invoices, sponsorship approval notice, PTE Academic test results, employment certification regarding the nominee dated 10 January 2020, and an employment agreement regarding the nominee. All material received by the Tribunal has been duly considered.
The applicant, through its internal Accountant Ms Liu (‘the nominee’), appeared before the Tribunal by telephone on 5 March 2020 to give evidence and present arguments. Ms Liu confirmed she had the authority of the company director, Mr Xiaowei Chen, to appear on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed that she understood the interpreter.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in Instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the Instrument. In certain circumstances this Instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The applicant nominated the nominee in the occupation of Accountant (General) (ANZSCO 221111). As noted in the s.359(2) invitation, some nominated occupations are now subject to an inapplicability condition (or ‘caveat’). The occupation of Accountant (General) has attached to it the following inapplicability conditions in accordance with Instrument IMMI 17/060:
·     Item 6 – the position is a clerical, bookkeeper or accounting clerk position;
·     Item 19 – the position is in a business that has an annual turnover of less than AUD 1,000,000; and
·     Item 21 – the position is in a business that has fewer than 5 employees.
Ms Liu, on behalf of the applicant, gave oral evidence which may be summarised as follows. The applicant challenges the nomination refusal decision because the delegate focused on a lack of turnover, which is no longer accurate. Ms Liu is confident that the applicant will turnover more than one million dollars in the present financial year, particularly given it has quoted over $400,000 for hotel flooring work on the Gold Coast through a customer called Unita. When asked by the Tribunal if this quote had been accepted by the customer, Ms Liu advised that it had not yet been accepted but is likely to be at the end of the month.
Ms Liu explained that she has worked for the applicant as a qualified Accountant since 2015. When asked by the Tribunal how she obtained the position, Ms Liu explained that she was searching for work after her studies and she approached a High School friend from China, Mr Xiaowei Chen (who is now the sole director of the applicant). Ms Liu advised that she performed a trial with Mr Chen who was happy with her performance and hired her. When asked by the Tribunal if she obtained the position because she was a friend of Mr Chen, she agreed this was the case.
Ms Liu outlined her duties with the applicant to include financial recording, taxation matters, BAS preparation, budgeting, financial reporting and liaising with the external taxation Accountant. The reason for her liaison with the latter is because she is not a specialist taxation Accountant herself. Ms Liu described her position as crucial to the operations of the applicant.
When asked by the Tribunal to outline the staffing of the applicant, Ms Liu indicated that Mr Chen is the director, she is the employed Accountant and Mr Chaobin is a part time floor layer. Ms Liu also advised that the following subcontractors perform work on behalf of the applicant, Heavy Carpets, Floorco, Mr Simon Xu (a sole trader) and Oz Internal as reflected in the submitted organisation chart (list of staff). Ms Liu told the Tribunal that the applicant preferred to utilise subcontractors to optimise the taxation outcome and also because the subcontractors preferred not to be employees as they can received higher rates. Ms Liu indicated that the subcontractors work faster under this model and the applicant is satisfied with it. Ms Liu is an employed Accountant because it would be too expensive for the applicant to constantly engage an external Accountant.
When asked by the Tribunal if she was ever a shareholder or director of the applicant company, Ms Liu confirmed that she was in 2015. She advised that she helped Mr Chen establish the company because he was not knowledgeable in this regard. The Tribunal raised with Ms Liu that the applicant submitted an ASIC Company Extract dated 20 January 2020. It indicates that she was a 50% shareholder of the company with Mr Wenxin Liu from its registration on 29 March 2015 until 6 March 2018, when Mr Wenxin Liu became the sole shareholder. It also indicates that she was the sole director of the company when it first registered until 17 October 2016, when Mr Xiaowei Chen became the sole Director. The Tribunal enquired as to the relationships of the aforementioned persons. Initially, Ms Liu denied being related to any of the other persons. She subsequently advised that Mr Wenxin Liu is her brother who lives in China. Ms Liu indicated that as the company needed two names for electronic registration she put her brother’s name in. Ms Liu conceded that she had made a mistake in doing this. When asked why her brother remained as the sole shareholder of the applicant now, Ms Liu was unsure and accepted it was her mistake. Ms Liu indicated that Mr Chen was not a director at the establishment of the company because she was more knowledgeable.
When asked by the Tribunal if she had ever resided with either Mr Liu or Mr Chen in Australia, Ms Liu indicated she had not but used the same addresses with respect to registering the company because her brother’s address was in China. Ms Liu confirmed that the applicant company did not have an Australian citizen or permanent resident on the record at the time of its registration. The Tribunal raised with the applicant, through Ms Liu, that given she was formerly a 50% shareholder and sole Director of Lin’s Flooring Pty Ltd, and is related to Mr Wenxin Liu and is a friend of Mr Xiaowei Chen, this might tend to suggest that the operations of the company are primarily designed to secure a migration outcome for the nominee and that the position associated with the nominated occupation is not genuine. The applicant was invited to comment and Ms Liu responded that she would have to change the forms regarding the company structure. She also advised that Mr Chen approached her first and asked her to help him register the flooring company. She did so as she was trained and had already registered a business before. Ms Liu maintained that when she attempted to register the applicant company online, the system required her to list a second shareholder so she put her brother’s name down. In due course, Mr Chen wanted the company in his name so he became the director. Ms Liu indicated that she would have to change her brother from being listed as the shareholder of the applicant company.
The Tribunal raised with the applicant that, as indicated earlier, it must consider whether the nominated occupation is subject to a caveat (or inapplicability condition) as outlined in Instrument IMMI 17/060. One caveat of potential relevance in this matter is ‘The position is in a business that has fewer than 5 employees.’ The Tribunal indicated that the evidence before it tends to suggest that the applicant has fewer than 5 employees and that the caveat (or inapplicability condition) prevents the nomination from being successful, inviting their comment. The applicant, through Ms Liu, responded that the applicant previously hired the floor layers as employees but it didn’t work well as it was inefficient for taxation and productivity purposes. She was not aware that engaging contractors would not satisfy the caveat. Ms Liu reiterated that the use of contractors was the best arrangement for both the applicant company and the individual floor layers.
The Tribunal raised with the applicant, through Ms Liu, that it submitted various financial documentation including Business Activity Statements, Company Tax Returns and invoices. The Tribunal drew to the applicant’s attention that it appeared the annual turnover of Lin’s Flooring Pty Ltd is less than AUD $1 million, inviting their comment. Ms Liu indicated that her expectation for turnover in the current financial year is for the company to exceed $1 million given the quotations provided to Unita. The company also has provided another quote to a Gold Coast based business which they expect to be confirmed by the end of March 2020. Ms Liu advised that the aforementioned quote was valued at approximately $200,000, so even without Unita accepting their other quote the applicant should exceed $1 million turnover in the current financial year.
The Tribunal raised with the applicant that, as indicated earlier, it must consider whether the nominated occupation is subject to a caveat (or inapplicability condition) as outlined in Instrument IMMI 17/060. One caveat of potential relevance in this matter is ‘The position is in a business that has an annual turnover of less than AUD 1 million.’ The Tribunal indicated that the bulk of the evidence before it tends to suggest that the company annual turnover is below AUD $1 million and that the caveat (or inapplicability condition) prevents the nomination from being successful, inviting their comment. Ms Liu, on behalf of the applicant, advised that it was not fair that the nomination could be refused on the basis of the turnover caveat as the application was made prior to its introduction by the Department. The Tribunal advised that the caveat is relevant to the application by the applicant and therefore must be considered during the review. Ms Liu replied that she projects the company turnover will be sufficient this financial year and again raised her objection to the timing of the introduction of the caveat.
The Tribunal raised with the applicant that the size, organisational structure, financial position and the business activities of the company appear to be inconsistent with the nature of the position associated with the nominated occupation, inviting their comment. Ms Liu, on behalf of the applicant, responded by advising that her role as the full time Accountant in the company is essential. She indicated that without her services, the applicant would need to hire another full time Accountant as she does all of the accounting matters such as budgeting and financial analysis. Ms Liu informed the Tribunal that without her the applicant company cannot continue its activities. Ms Liu did not believe that the size of the applicant is relevant, as it needs a full time Accountant, she has been involved since the start of the business and she knows a lot about its operations. She indicated her position is important and indispensable.
Prior to the conclusion of the review hearing, the Tribunal invited the applicant, through Ms Liu, to provide any further evidence that it wished. Ms Liu confirmed to the Tribunal that the applicant had no more evidence to provide in this review. The Tribunal notes that the applicant submitted various pieces of documentary evidence to it and also to the Department. Such documentary evidence includes, taxation records (including BAS), the organisation chart (list of staff), ASIC records, invoices, a sponsorship approval notice, PTE Academic test results, employment certification regarding the nominee dated 10 January 2020, and an employment agreement regarding the nominee. The Tribunal has very carefully considered all of the evidence relevant to the review, both oral and documentary.
The Tribunal notes that the applicant’s initial oral evidence regarding her relationship with the officers of the applicant company displayed vagary and evasiveness. She did not initially confirm that her brother was involved, which undermines her credibility. The Tribunal does not accept that Ms Liu unwittingly recorded herself and her brother as individuals involved in the applicant company, given she is a fully qualified Accountant. Indeed, her description of the establishment of the applicant company, her engagement as its Accountant and its current shareholding, are not suggestive of a bona fide arrangement. On balance, the Tribunal forms the view that the applicant company was primarily created to secure a migration outcome for Ms Liu. Further, the size, organisational structure, financial position and the business activities of the company appear to be inconsistent with the nature of the position associated with the nominated occupation. Following careful consideration of the evidence, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
The Tribunal accepts the applicant is trading. However, the submitted documentary material indicates that it has never achieved an annual turnover of AUD $1 million. The Tribunal does not accept the veracity of the assertions made by Ms Liu, on behalf of the applicant, that the company will exceed $1 million turnover this financial year, given the credibility concerns regarding her, in conjunction with the lack of persuasive supporting documentary material. Additionally, the Tribunal does not accept that the applicant has at least 5 employees given that aside from Mr Chen, Ms Liu and Mr Chaobin, the company utilises the services of contractors. Even if Mr Xu, as a sole trader, was included in the staffing list, the remainder of the contractors utilised are entities other than sole traders, thus it is apparent the applicant does not have at least 5 employees.
On balance, when the above matters are considered cumulatively, the Tribunal is not satisfied that the applicant has the sufficient turnover, or number of employees, to permit the nomination. Rather, the Tribunal forms the view that Items 19 and 21 of Instrument IMMI 17/060 operate to preclude the nomination of the nominee. The Tribunal so finds. For these reasons, the applicant’s nomination does not meet the requirements of r.2.72(10)(aa) of the Regulations.
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.
For reasons previously expressed, the Tribunal is not satisfied that the position associated with the nominated occupation of Accountant (General) is genuine. Accordingly, the requirements of r.2.72(10)(f) are not met.
Therefore, 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.

[2020] AATA 2486

1 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness