Michellechen Pty Ltd (Migration)

Michellechen Pty Ltd (Migration) [2018] AATA 3815 (2 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Michellechen Pty Ltd
CASE NUMBER:  1603422
DIBP REFERENCE(S):  BCC2015/2792617
MEMBER:Antonio Dronjic
DATE:2 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 02 August 2018 at 12:10pm

CATCHWORDS
Migration – Nomination refusal – Café or Restaurant Manager – Genuine need to employ a restaurant manager on a full-time basis – The position was created to facilitate the entry or stay of the nominee to Australia – 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 [2015] FCCA 2091
Visnumolakakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 February 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 24 September 2015. 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) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The nominated occupation is café or restaurant manager ANZSCO code 141111. The sponsoring business is Michellechen Pty Ltd. The nominee, Ms Tsi Mee Chen, is the sole director and shareholder of the sponsoring business. The business operates Ah Wong’s Restaurant and Café at Wongan Hills, WA.
The applicant applied to the tribunal on 15 March 2016 for review of the delegate’s decision. With the review application, the applicant submitted a copy of the primary decision record.
On 15 April 2016, the applicant’s representative submitted:
·A copy of a letter from Mr Stuart Taylor dated 23 March 2016, outlining the importance of the sponsoring business for the local community; and
·A copy of a letter from Mr Geoff McKenna dated 8 March 2016, outlining the importance of the sponsoring business for the local community.
On 9 April 2018, the Tribunal sent a letter to the applicant which contained a request to the applicant to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in regulation 2.72 of the Regulations. The request was made pursuant to section 359(2) of the Act.
On 19 April 2018, the applicant’s representative submitted the following documents:
·Legal submissions dated 19 April 2018;
·A copy of Ah Wong’s Roadhouse Restaurant and Café menu;
·A copy from ‘internet restaurant advertising’;
·A copy of Council meeting notes from 27 April 2016;
·An extract from Australia’s Golden Outback Holiday Planner for 2018; and
·A bundle of photographs depicting the restaurant.
On 26 April 2018, the applicant’s representative submitted a copy of a letter from Mr Geoff McKenna dated 26 April 2018, outlining the importance of the sponsoring business for the local community.
On 30 April 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 18 June 2018. With this letter, the Tribunal invited the applicant to provide Financial Statements, updated employment agreement, payslips for the nominee and evidence of payment of nominee’s wages into her bank account.
On 3 May 2018, the applicant’s representative wrote to the Tribunal advising that the company representative Mr Josef Ong (the late husband of Ms Chen who is the nominee) passed away in mid-2017, enclosing a copy of the death certificate. The representative informed the Tribunal that he will not be able to attend the scheduled hearing, requested that the Tribunal send him a copy of the hearing recordings and grant additional 10 days after the hearing to provide further submissions and documentary evidence in support of the application.
On 17 May 2018, the applicant’s representative submitted the following documents:
·A copy of a letter from Mr Stuart Taylor dated 10 May 2018, outlining the importance of the sponsoring business for the local community;
·ANZ bank statements as evidence of the transfer of wages from the business cheque account to the nominee’s designated account from 29 June 2017 and 25 May 2017;
·Offer of employment dated 3 May 2018, stating inter alia that the nominee’s employment is subject to normal Australian industry award conditions and that the commencing based salary is $96,400;
·A copy of lodgement receipts as evidence of payment of wages to the nominee from July 2017 to April 2018;
·A copy of the salary ledger account printed from MYOB evidencing the payment of wages to the nominee;
·A copy of the financial statements for the sponsoring business for the financial years ending 30 June 2016 and 30 June 2017;
Ms Chen appeared on behalf of the sponsoring business before the Tribunal on 18 June 2018 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent who did not attend the hearing.
Prior to arriving in Australia, Ms Chen worked as a sales manager at a landscaping business in Malaysia. She also managed a floral business. The highest level of education completed in Malaysia was a high school diploma. Her husband passed away in July 2017. She has three children who are attending school in Australia.
When asked to confirm if she has the authority to represent the sponsoring business in these proceedings, she stated that he she is also the owner and the general manager of the business.
She gave evidence that, as a business manager, she hires and fires employees, undertakes necessary administrative tasks, controls the business’s financial transactions and makes decisions affecting the overall operations of the business. She provides overall direction and management to business organisation and ensures the business complies with health and safety regulations. When required, she also works as a cook in the kitchen. During the past financial year, her annual wages were approximately $55,000. She is employed by the business on a full-time basis.
She gave evidence that the business employs nine employees, including her. The business can seat approximately 40 customers (five tables inside and five outside the restaurant). The business employs four cooks on a full-time basis and they are paid $25.00 per hour or approximately $42,000 to $43,000 per year (not including superannuation). The business also employs two full-time and two part-time waiters/ waitresses and they are paid $21–$22.00 per hour.
Ms Chen first arrived in Australia as a holder of a Subclass 457 visa in December 2006. Her husband was the primary applicant for this visa and was sponsored by the same business and nominated to work as a general manager. The visa was granted in December 2006 and remained valid until November 2010. She gave evidence that she worked at the same business as a customer services manager.
In March 2011, Ms Chen was granted her second Subclass 4547 visa. This time she was the primary applicant. She was sponsored by the same business and her nominated occupation was customer services manager. This visa remained valid until March 2015.
Together with her late husband, she acquired the business in July 2014. They invested $200,000 by way of loan in the business. Ms Chen is the sole shareholder and only company director.
She confirmed in her evidence that her nominated occupation, relevant to the current application that is before the Tribunal, is restaurant manager. She stated that the business previously did not employ restaurant managers.
I noted that she provided to the Tribunal an updated employment offer dated 3 May 2018, stating that her annual wages will be $96,400 per annum. She confirmed that she signed the employment offer both as a nominee and the company’s authorised representative.
I observed that in her oral evidence she stated that she received an annual salary of $55,000 during the past financial year. I enquired why the proposed salary is $96,400. She explained that she was unable to achieve the desired score on the IELTS test, that she has to pay herself this salary to be exempt from the English language visa requirement and that she was following the advice given by her migration agent.
I enquired if she is taking any profit from the business. Ms Chen stated that she took some $40,000 from the business for her children’s school fees. She explained that she invested $200,000 in the business by way of loan and is now taking this money back. According to the financial statements provided, the loan balance in 2017 was $71,000.
I noted that in her evidence she stated that she is the general manager of the sponsoring business, that she hires and fires employees, undertakes necessary administrative tasks, works as a cook in the kitchen when required, controls the business’s financial transactions and makes decisions affecting the overall operations of the business. She also stated that she provides overall direction and management to the business and ensures the business complies with health and safety regulations.
I noted that most of these duties are not performed by a person employed by the business as a restaurant manager. I expressed my concerns that the nominated position was created to secure the immigration outcome for Ms Chen and her children and not because the business has a genuine need to employ a restaurant manager on a full-time basis.
Ms Chen conceded that her current role involves much more than undertaking the tasks of a restaurant manager. She stated that, after her husband passed away in July 2017, she had to take over the role of general manager.
I expressed my concerns that the proposed salary of $96,400 appears to be well above the salary rate that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location. I noted that in her evidence she conceded that the only reason for the proposed salary was her inability to achieve the required results on an English language test and her desire to be exempt from having to do so.
I noted that the applicant’s representative requested that the Tribunal postpone making its decision for 10 days in order to obtain the hearing recordings and provide post hearing submissions. I granted the applicant until 20 July 2018 to provide further submissions and documentary evidence in support of the review application.
On 19 July 2018, the applicant’s representative submitted legal submissions stating that it is still possible for the Tribunal to find that the position is largely that of a café and restaurant manager and not of a managing director.
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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Tribunal notes that in Cargo First Pty Ltd v MIBP [2015] FCCA 2091 the Court considered the meaning of r.2.72(10)(f). The Court held:
With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation.
In considering whether the position associated with the nominated occupation is genuine, the tribunal has had regard to the Department’s Procedures Advice Manual PAM3. As regards the application of these policy guidelines, the tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drake (No 2) (1978-1980) 2 ALD 634. Indeed, in Visnumolakakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.
According to the departmental policy, the 457 visa program was designed to enable employers to address labor shortages by bringing in genuinely skilled workers in circumstances where they could not source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to ‘create a position’ – for example, in order to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available.
The departmental policy sets up several examples of factors that might indicate that facilitating the entry or stay of the nominee is the primary objective of the application. It includes an example where the nominee is a director or owner of the sponsoring business.
Ms Chen stated in her evidence that she is the owner and the managing director of the sponsoring business. In this capacity she is making decisions as to who will be employed at the business. She confirmed in her evidence that she signed the employment agreement related to the nominated position on behalf of the sponsoring business and as an employee. The business has never previously employed a restaurant manager. I am not satisfied on the evidence before me that the business ever intended to employ an alternative person at the nominated position.
She gave evidence that, as a business manager, she hires and fires employees, undertakes necessary administrative tasks, controls the business’s financial transactions and makes decisions affecting the overall operations of the business. She provides overall direction and management to business organisation and ensures the business complies with health and safety regulations. When required, she also works as a cook in the kitchen. Most of these duties are not performed by a person employed by the business as a restaurant manager.
I have taken into account the evidence regarding the business’s turnover and the number of customers. I have also considered the position description, the offer of employment, the organisational chart and the financial documents. I accept that the business is important for the local community and I have considered reference letters provided by Mr Taylor and Mr McKenna in this respect.
Considering the size of the business, I am not satisfied that the position associated with the nominated occupation is genuine. According to her own evidence given at the hearing, Ms Chen is performing tasks of a managing director, which is not the occupation nominated in the application.
Based on the evidence before me I am satisfied that the main purpose of creating a position of a restaurant manager within the business was to secure the immigration outcome for Ms Chen and her children and not because the business has a genuine need to employ a restaurant manager on a full-time basis. I find this to be the primary objective of the application.
Based on the evidence before me, I am not satisfied that the position associated with the nominated occupation is a genuine position. For these reasons the requirements of r.2.72 (10)(f) are not met. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Antonio Dronjic

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

[2018] AATA 3815

2 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction