LOUI PETREVSKI BUSINESS TRUST (Migration)

LOUI PETREVSKI BUSINESS TRUST (Migration) [2019] AATA 4316 (8 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  LOUI PETREVSKI BUSINESS TRUST
CASE NUMBER:  1618887
HOME AFFAIRS REFERENCE(S):           BCC2016/1975767
MEMBER:Michael Ison
DATE:8 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 08 July 2019 at 1:03pm

CATCHWORDS
MIGRATION – nomination – role is genuine Customer Service Manager position – tasks of position consistent with ANZSCO – qualifications and experience consistent with ANZSCO – evidence of salary provided – terms and conditions equivalent to Australian citizen or permanent resident performing same work at same location – approved standard business sponsor – exempt from labour market testing obligations – decision under review set aside

LEGISLATION
Fair Work Act 2009
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 2.57, 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 21 October 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 7 June 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position nominated is a genuine Customer Service Manager position. The delegate found the position exists, is a management position and the applicant requires the position, but also found it is not a dedicated Customer Service Manager position because the nominated person does not manage any customer service staff, engage in complex customer service enquiries, appears to have general management duties including following up on local customer service issues only and is not in a policy making but is rather a policy executing position.
The applicant appeared before the Tribunal by video conference on 28 May 2019 to give evidence and present arguments. The Tribunal received oral evidence from Mr Mark Piwkowski who is the Chief Executive Officer of Quayclean Australia Pty Ltd (Quayclean), which is owned by the applicant in partnership with other entities and from Mr Suresh Kumar, a 37 year old Indian national who will work in the nominated position. Mr Kumar was not present in the video conference room while Mr Piwkowski gave evidence.
The applicant was represented in relation to the review by its registered migration agent, Mr Nishant Malik of Ozreach Consultants Pty Ltd.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018.
Background
Quayclean is a national cleaning and facilities management company that provides venue cleaning, function management and related services (such as waste management) on a whole of facility basis for venues such as the Sydney Cricket Ground, the Sydney Opera House, the Melbourne Sports & Aquatic Centre, Perth Arena, Victorian Parliament House and Sydney Olympic Park and for events such as the 2018 Commonwealth Games.
Mr Piwkowksi’s evidence included that Quayclean is owned jointly by the Loui Petrevski Business Trust, the Sash Petrevski Business Trust and the Petrevski Family Trust.
Mr Kumar and Mr Piwkowski told the Tribunal that Mr Kumar has worked for Quayclean since 2013 and has worked in the Customer Service Manager role since 2016. The Tribunal accepts this evidence.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The nominator in this case is nominating an occupation under s.140GB(1)(b) and has identified an applicant for a Subclass 457 visa as the person who will work in the occupation for the purposes of r.2.73(1A). On the basis of material on the Department’s file, the Tribunal finds that the nomination was made using the approved form and fee (r.2.73(2), (3), (5) & (9)), the nominee has been identified in the nomination (r.2.73(4A)) and the nomination includes the location at which the occupation will be carried out, and the name and 6 digit ANZSCO code (r.2.73(4)).The Tribunal is satisfied the applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a).[1]
[1] Subclass 457 visa nomination submitted by Quayclean Australia Pty Ltd dated 7 June 2016, Department file, folios 117 to 124 at folio 123.
The applicant has provided the certification that the person has not engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant provided the Tribunal with a copy of a Notice of Decision – Sponsorship Approval Notice dated 29 July 2016 that states the applicant is an approved standard business sponsor with effect from 29 July 2016 to 29 July 2021.[2] There is no information before the Tribunal that the applicant’s status as an approved standard business sponsor has been revoked or cancelled.
[2] Tribunal file, folio 49.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
In its application the applicant has identified Mr Kumar as the applicant for a Subclass 457 visa who will work in the nominated occupation.[3]
[3] Department file, folios 117 to 124 at folio 123.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination: the name of the occupation and the corresponding 6-digit ANZSCO code if there is one and the location(s) at which the nominated occupation is to be carried out.
In the nomination application form the position details were provided as:
·Job title:              Customer Service Manager
·Occupation:        Customer Service Manager
·ANZSCO Code:   149212 – Customer Service Manager
The application form also included the street address where the nominee will be employed.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The application form included a certification by the applicant that the applicant has not engaged in conduct, in relation to the nomination, that would contravene r.245AR(1).
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or an ‘associated person’.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant 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 occupation nominated by the applicant and its 6-digit code correspond to an occupation and 6-digit code specified in IMMI 17/060 at item 48 of the Short-term Skilled Occupation List. The nominated occupation is subject to inapplicability conditions 2, 11 and 19 specified in IMMI 17/060. Inapplicability condition 2 is the position has a base salary of less than AU$65,000; condition 11 is the position is based in a front-line retail setting or predominantly involves direct client transactional interaction on a regular basis; and condition 19 is the position is in a business that has an annual turnover of less than AU$1,000,000.
During the hearing Mr Piwkowski and Mr Kumar both separately gave evidence that Mr Kumar’s base salary is AU$60,000 per annum. This evidence was consistent with 13 payslips for the nominee the applicant provided to the Tribunal covering the nominee’s fortnightly payment of salary from 10 November 2018 to 10 May 2019.[4] Each payslip states the nominee is paid an ordinary time hourly rate of AU$30.3644 for 38 hours a week which equals AU$2,307.69 a fortnight or AU$60,000 per annum plus superannuation.
[4] Tribunal file, folios 126 to 132.
The applicant also provided a copy of a bank statement for the nominee that showed the fortnightly deposit of the nominee’s salary into his bank account between 13 November 2018 and 14 May 2019.[5] Thirteen of the 14 entries showed payment of AU$1,835.69 which is the same amount shown as ‘net earnings’ on each of the nominee’s payslips referred to above.
[5] Tribunal file, folios 137.
However, this evidence was not consistent with the nominee’s contract of employment dated 27 May 2016, a copy of which was provided to the Tribunal by the applicant.[6] That document stated:
Salary: You will be paid AUD 67,000 + 9.5% Superannuation.
[6] Tribunal file, folios 56 to 57.
Given the inconsistency in the evidence before the Tribunal, the Tribunal wrote to the applicant after the hearing in accordance with the procedure under s.359(2) of the Act, highlighting the inconsistent evidence before the Tribunal and seeking further information from the applicant about the nominee’s base salary.
On 20 June 2019 the applicant provided the following to the Tribunal:
·An updated contract of employment between Quayclean and the nominee dated 18 June 2019 stating the salary the nominee will be paid is AU$67,000 per annum plus superannuation;[7]
·An undated Job Outlook report for Call, Contact Centre & Customer Service Managers (ANZSCO ID 1492) that stated the average annual salary for such employees is AU$66,248;[8]
·Ten fortnightly payslips from 19 January 2019 to 7 June 2019 with the most recent payslip for the period 25 May 2019 to 7 June 2019 showing the nominee’s gross earnings (excluding superannuation) for 76 hours of ordinary time work were AU$2,576.92 or AU$67,000 per annum;[9] and
·A bank account statement showing the deposit of the nominee’s salary into his bank account for the period 8 January 2019 to 11 June 2019 with the most recent entry being for a net salary of AU$2,010.92 which is the net salary stated on the most recent payslip for the nominee provided by the applicant.[10]
[7] Tribunal file, folios 159 to 160.
[8] Tribunal file, folios 149 to 158.
[9] Tribunal file, folios 144 to 148.
[10] Tribunal file, folio 143.
The Tribunal finds from the oral and inconsistent documentary evidence provided to the Tribunal up to and at the Tribunal hearing that the applicant paid the nominee an annual salary of AU$60,000 up to the Tribunal hearing. This means inapplicability condition 2 of IMMI 17/060 would have applied because the nominee’s annual salary is less than AU$65,000 with the effect the nominated position would not have met the requirements of r.2.72(10)(aa).
However, based on the information submitted after the Tribunal hearing the Tribunal is now satisfied at the time of this decision that the applicant is paying the nominee a base salary of AU$67,000 as set out in the updated contract of employment dated 18 June 2019 and confirmed in both the nominee’s payslip for the period 25 May 2019 to 7 June 2019 and the nominee’s bank statement showing the deposit of his salary into his bank account for that period.
The Tribunal is satisfied the nominee is not based in a front-line retail setting or involved in direct client transactional interaction on a regular basis. The Tribunal is satisfied the applicant has an annual turnover in excess of AU$1,000,000.
Since the nomination application was made changes to the Subclass 457 visa program were made which are effective from 19 April 2017. The occupation of Customer Service Manager (ANZSCO 149212) is not affected by these changes.
For these reasons the requirements of r.2.72(10)(aa) are met.
There is no requirement specified in IMMI 17/060 for the nomination to be supported by a specified organisation in writing.
For these reasons the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB).
The nominee’s annual earnings, as reflected in the recent employment and salary documents referred to above, is AU$67,000 per annum, exclusive of superannuation. The relevant instrument, IMMI 13/028, specifies the threshold at AU$250,000. As the nominee’s annual rate of earnings is less than this, the applicant is required to be assessed under r.2.72(10)(c).
The nominee’s terms and conditions of employment are set out in his contract of employment dated 18 June 2019. There is no other Australian citizen or permanent resident performing the same work in the same location.
In the absence of an equivalent Australian employee, the Tribunal must use the methodology prescribed in Schedule A to legislative instrument IMMI 09/113, for the purposes of r.2.72(10)(AA).
In considering that instrument, the relevant fair work instrument is the Cleaning Services Award 2010 [MA000022]. The Tribunal has also had regard to evidence provided by the applicant of the salary range and terms and conditions for similar positions that have been advertised. This includes the market rate of pay for an employee for the role of Customer Service Manager the applicant obtained from the Job Outlook website and provided to the Tribunal on 20 June 2019. As noted above, the pay snapshot from that website for a Call, Contact Centre or Customer Service Manager, cross referenced to ANZSCO identification 1492, for someone with a Diploma level qualification or higher and at least 3 years’ experience shows an average salary of AU$66,248. The applicant’s submission to the Department dated 15 August 2016, a copy of which the applicant provided to the Tribunal, stated:
For Justification of the nominated salary, we have taken reference from Job Outlook and came to the conclusion that the nominated salary of AUD 67000 is ideal for Mr Suresh Kumar. (sic)[11]
[11] Tribunal file, folio 59.
Having regard to this evidence and information the Tribunal is satisfied that the terms and conditions that apply to the position are equivalent to and therefore will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
The nominee’s base rate of pay, as reflected in recent salary documents referred to above, is AU$67,000 per annum, exclusive of superannuation.

The current TSMIT for the purposes of r.2.72(10)(cc) is AU$53,900: IMMI 13/028. On the basis of the above evidence, the Tribunal is also satisfied that the base rate of pay that would be provided to the Australian equivalent employee is greater that the relevant TSMIT (r.2.72(10)(cc)).
For these reasons the requirements of r.2.72(10)(cc) do not apply.
The Tribunal is therefore satisfied that the nominee’s terms and conditions of employment are in relevant respects no less favourable than those that are or would be provided to an Australian citizen who is performing equivalent work at the same location.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO description for the occupation of Customer Service Manager (ANZSCO 149212);
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The applicant provided evidence to the Department at time of application and to the Tribunal in relation to the position description, the nominee’s contract of employment and duties as a Customer Service Manager. In considering the information provided by the applicant the Tribunal is satisfied that the tasks of the nominee’s position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO dictionary for the occupation of Customer Service Manager (ANZSCO 149212).
The applicant has provided considerable documentation, including historic and updated company general, financial and tax information that indicates to the Tribunal that the applicant has been lawfully operating its business in Australia since approximately 2002. According to Mr Piwkowski Quayclean currently has over 1400 staff and annual revenue approaching AU$50M[12] for 2018 – 2019 which is consistent with a company operating a national venue management, cleaning and waste management services business with many of Australia’s premier venue and leisure facility owners and hirers as its customers. The Tribunal accepts this evidence and finds the nominated occupation is a position with the applicant’s business in Australia.
[12] The applicant provided extensive company financial information including its 54 page financial statement for 2017 – 2018, Tribunal file, folios 98 to 124. This report records revenue of AU$39.6M and profit (after tax) of AU$1.4M for 2017 – 2018 compared to the 2016 – 2017 results of revenue of AU$30.9M and profit (after tax) of AU$1.4M at folio 123. Recent financial statements were also provided for the Loui Petrevski Business Trust, the Sash Petrevski Business Trust and Quayclean Partnership as the owners of the applicant at Tribunal file, folios 26 to 55. The Tribunal accepts this evidence.
The ANZSCO lists most people holding the nominated position would have one of an Associate Degree, Advanced Diploma or Diploma or at least three years of relevant experience in place of or in addition to the formal qualification. The nominee, Mr Kumar, has listed in his curriculum vitae on the Department’s file that he holds the following qualifications, all of which have been obtained in Australia while Mr Kumar held a Student visa: Diploma of Marketing, Diploma of Project Management, Diploma of Human Resources Management, Advanced Diploma of Management (Human Resources), Diploma and Advanced Diploma of Management, Diploma of Hospitality Management and a Certificate III in Hospitality (Commercial Cookery).[13] The Department’s file contains copies of the certificates of completion for these qualifications other than for the Diploma of Marketing and Diploma of Project Management.[14]
[13] Department file, folios 16 to 17.
[14] Department file, folios 138 to 151.
Mr Piwkowski and Mr Kumar’s separate evidence was consistent that Mr Kumar began working for Quayclean in 2013. Mr Piwkowski outlined Mr Kumar’s history and career path with Quayclean and spoke in very positive terms about Mr Kumar’s contribution to the company.
In its application the applicant has certified that the tasks of the position include a significant majority of the tasks of the nominated occupation 149212 – Customer Service Manager as listed in the ANZSCO dictionary, that the qualifications and experience of the nominee are commensurate with the qualifications and experience specified for the nominated occupation in the ANZSCO dictionary and that the nominated occupation is a position within the applicant’s business in Australia.
For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal discussed separately with both Mr Piwkowski and Mr Kumar in detail what day to day and overall management tasks Mr Kumar performs for Quayclean. The Tribunal also put separately to both Mr Piwkowski and Mr Kumar the delegate’s findings that had led to the delegate refusing the applicant’s nomination. In summary, those findings were:
·Mr Kumar does not manage any dedicated customer service staff;
·Mr Kumar does not engage in any complex customer service enquiries;
·Mr Kumar’s position is a general management position where Mr Kumar follows up on local customer service issues only;
·Many management roles have customer service duties but this does not make them a Customer Service Manager as that position is specified in the ANZSCO and that is the case with Mr Kumar’s position;
·A Customer Service Manager is a policy making rather than a policy executing position and Mr Kumar does not make policy; and
·Mr Kumar’s position appears to be concerned primarily with running day to day operations.
Mr Piwkowski’s evidence is that Quayclean arranges its staff, including some management roles such as Mr Kumar’s, according to the contracts it wins and must then service. Staff are not organised on fixed regional or state boundaries although some management positions work across the overall operations of the company.
Mr Piwkowski told the Tribunal that Mr Kumar is responsible for customer relations with three important clients for Quayclean being the trusts who respectively manage the Sydney Cricket Ground, the Sydney Opera House and the Sydney Olympic Park. Mr Piwkowski’s evidence is that the annual revenue to the company from these three contracts exceeds AU$12M. On Mr Piwkowski’s evidence this is nearly a quarter of the revenue for the company. The Tribunal accepts this evidence.
Mr Piwkowski explained in detail to the Tribunal Quayclean’s approach to customer service and servicing its clients, consistent with its Customer Service Charter[15] and Mr Kumar’s role in managing the satisfaction of these three major clients and the satisfaction of the many hirers of spaces for functions within these venues. This included detailed evidence on how Quayclean monitors its performance and provides feedback to its customers and how this information is also reported and acted upon within the company.
[15] Tribunal file, folio 66.
Mr Kumar told the Tribunal about his day to day tasks and how he communicates with these major clients for Quayclean and also reports back to the company. It was clear to the Tribunal from Mr Kumar’s evidence that his primary focus is to ensure these three major customers for Quayclean and their respective customers in the form of people and organisations who hire venue space for functions, are continuously satisfied with Quayclean’s performance which is obviously critical to the public presentation and public perception of the cleanliness of each venue. The Tribunal understood from Mr Kumar’s evidence that he is strongly committed through constant and effective communication to ensuring Quayclean performs above and beyond its contractual obligations so that it exceeds the expectations of these major Quayclean customers. In short, Mr Kumar’s main role and focus for Quayclean is the customer satisfaction of these three major clients.
From the evidence of Mr Piwkowski and Mr Kumar the Tribunal is satisfied that the tasks of Mr Kumar’s position as a Customer Service Manager are consistent with a significant majority of the tasks of the nominated occupation listed in ANZSCO 149212 including in particular “plans, administers and reviews customer services and after-sales services, and maintains sound customer relations” which is the Customer Service Manager specific task description in ANZSCO 149212, compared to the other seven tasks listed as common to a Call or Contact Centre Manager and a Customer Service Manager.
The Tribunal finds that a central responsibility for Mr Kumar in meeting with senior representatives of each customer and senior representatives of their key customers, such as tenant Australian Football League and National Rugby League clubs at the Sydney Cricket Ground, is to manage complex customer service enquiries and expectations.
The Tribunal finds that Mr Kumar does not have a formal policy making role at Quayclean but can have input into policy formulation and does have authority to create and implement new policies and initiatives to ensure customer satisfaction where needed. Mr Piwkowski provided examples of where Mr Kumar had done this for clients, particularly in relation to waste management initiatives at the Sydney Cricket Ground.
The Tribunal also finds that while Mr Kumar does have operational responsibilities and will undertake operational duties when required, consistent with the Quayclean’s approach to customer service, the main focus of the role is managing the satisfaction of three major clients with Quayclean’s cleaning and venue management services. On the evidence before the Tribunal this is a customer service management role and not an operational management role which Mr Piwkowski gave evidence is performed by team leaders and supervisors who report to the Customer Service Manager.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister.
The Tribunal has been provided with a copy of the employment contract between the applicant and the nominee, signed by Mr Kumar and Mr Piwkowski on 18 June 2019. The contract is stated to be for four years.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
There is no information before the Tribunal to indicate that the applicant is a party to a work agreement in the sense required by r.2.72(11) and (12) and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. IMMI 13/136 provides “that the period within which labour market testing is required in relation to a nominated occupation is twelve (12) months.”[16]
[16] IMMI 13/136, dated 18 November 2013 and commenced on 23 November 2013.
In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The occupation nominated by the applicant is not subject to the major disaster exemption.
Instrument IMMI 13/137 made under s.140GBC of the Act specifies for the purpose of s.140GBC(4)(b) of the Act that all occupations that are classified in the ANZSCO as Skill Level 2 are exempt from labour market testing.[17]
[17] IMMI 13/137, dated 18 November 2013 and commenced on 23 November 2013 at clause 2.
Note 2 of instrument IMMI 13/137 provides that to be exempt from labour market testing the nominated occupation must be both specified in instrument IMMI 13/137 and satisfy the requirements of s.140GBC(3)(a) which provides that the occupation requires either or both a relevant Associate Degree, Advanced Diploma or Diploma and three years or more of relevant experience.
The definition of ANZSCO nominated position 149212 is that it is a Skill Level 2 position which requires either a relevant Associate Degree, Advanced Diploma or Diploma or three years or more of relevant experience. Notably, the nominee holds a relevant Advanced Diploma and has also had more than three years relevant experience with the applicant.
The Tribunal finds that the skill and occupation exemption under s.140GBC of the Act applies to the nominated position such that it is exempt from the labour market testing obligations required under s.140GBA of the Act.
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Michael Ison
Senior Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2019] AATA 4316

8 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal