NEWCASTLE GLASS PTY LTD (Migration)

NEWCASTLE GLASS PTY LTD (Migration) [2022] AATA 3043 (15 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NEWCASTLE GLASS PTY LTD
REPRESENTATIVE:  Ms FANG LIU (MARN: 1463212)
CASE NUMBER:  1917318
HOME AFFAIRS REFERENCE(S):          BCC2018/933229
MEMBER:Warren Stooke AM
DATE:15 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 15 August 2022 at 8:37am

CATCHWORDS
MIGRATION – nomination – Electrician (General) – nominee does not perform the tasks described in the Electrician (General) – ANZSCO Code: 341111 – nominee does not possess an electrical licence –– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR
Migration Regulations 1994, rr 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 Home Affairs on 13 June 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 27 February 2018. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 reg 2.72(10)(f) because the duties of the proposed position were not commensurate with the duties required of an Electrician (General) – ANZSCO Code: 341111.
The applicant appeared before the Tribunal on 21 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Hui Li, the nominee for the occupation of Electrician (General) – ANZSCO Code: 341111. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant provided evidence that the applicant had received and read the decision relating to the application and that he understood the visa application was refused maybe because the nominee did not meet the requirements.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 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. In addition, for nominations made from 23 November 2013, s 140GBA must be met.
The applicant provided evidence of registration of Newcastle Glass Pty Ltd with ASIC and an assigned ABN: 15 612 203 497 that was granted on 4 May 2016.
The applicant submitted that Newcastle Glass Pty Ltd was registered on 4 May 2016 and started trading to offer glazing services from September 2016 and that Newcastle Glass is striving for becoming the best glass provider in Newcastle and surrounding areas in NSW and it is specialized in wholesale glass to the construction industry.
The applicant provided evidence of an approved standard business sponsorship dated 10 May 2018 that ceases on 10 May 2023 for the nominated occupation of Electrician (General) – ANZSCO Code: 341111.
The applicant provided a copy of an organisation chart where the nominated position of Electrician (General) reports to the Production Engineer, and evidence was provided that the Production Engineer is not electrically qualified.
The applicant provided a copy of the employment contract between the business and the nominee dated 27 February 2018 that applies from the grant of a 457 visa, with a salary of $63,000 and superannuation of 9.5 per cent. The applicant provided evidence of a new contract dated 23 June 2022.
The applicant stated that the business’s main activity is to purchase glass from his native country, China, and then manufacture, cut, drill and perform other processes. The business also purchases glass from Melbourne.
The applicant stated that the process includes glass sizes from 3660mm x 2440mm in thicknesses of 4 to 12mm for cutting. The applicant stated that they do not undertake installation.
The applicant provided evidence that the business employs 32 employees that includes: Citizen/PR =21, Temporary Visa=11 (4x 457/482 visa, 4xStudent visa, 2x Bridging Visa).
The applicant stated that the Manufacturing and Associated Occupations Industry Award applies to employees in the business.
The applicant provided evidence that the employees were given a Fair Work Information Statement at the time of employment.
The applicant provided evidence that the responsibilities and duties of the nominated position, includes the following:
“Designing, installing, testing, connecting, commissioning, maintaining and modifying electrical or electronic wiring and control systems by using hand tools and power tools.
1.Working with the Production team to plan and undertake electrical work including fault diagnosis, testing and commissioning.
2.Reading and interpreting plans and specifications, determining the correct sequences and methods.
3.Assembling and installing electrical system to power supply and testing continuity of circuit.
4.Planning layout and measuring installation with reference points based on job specifications and local codes.
5.Selecting, cutting and connecting wires to circuit breakers, transformers, or other components.
6.Inspecting electrical systems, equipment & machinery, and components on schedule to identify hazards, defects, and the need for adjustment or repair, and to ensure compliance with codes.
7.Repairing and maintaining all facility and production machinery and equipment that encompass electrical components.
8.Maintaining controls and improve manufacturing equipment and glass machinery.
9.Providing skilled electrical support to all areas of manufacturing.
10.Assisting Production Engineer with technical troubleshooting for electrical.
11.Assisting and training other maintenance and/or other technical level employees.
12.Participating in and provide support for team initiatives in the areas of Safety, Quality and Productivity.”
The applicant stated that he had no in-depth discussion with the nominee in 2019, as his business partner was involved in the recruitment.
The Tribunal asked the applicant to identify the tasks performed by the nominee as an employee of the business in the claimed occupation of Electrician (General) – ANZSCO Code: 341111 and the evidence included that the nominee’s duties included the following tasks:
oexamining blueprints, wiring diagrams and specifications to determine sequences and methods of operation
omeasuring and laying out installation reference points
oselecting, cutting and connecting wire and cable to terminals and connectors
ousing electrical and electronic test instruments to trace and diagnose faults
orepairing and replacing faulty wiring and defective parts
opositioning and installing electrical switchboards
oconnecting electrical systems to power supply
otesting continuity of circuit
The applicant stated that the nominee does not perform the following tasks described in the Electrician (General) – ANZSCO Code: 341111 and performed in the nominee’s tasks for the business given that the nominee does not possess an electrical licence and has not been assessed by Trade Skills Australia:
opositioning and installing electrical switchboards (the nominee does the preparatory work but does not have an A grade licence yet);
oconnecting electrical systems to power supply.
The applicant stated that the position is full-time and has a salary of $73,000.
The applicant provided evidence that the nominee undertook an IELTS English language test on 17 January 2017 with an overall score of 5.0 and 4.5 for speaking.
Evidence of Mr Hui Li (the nominee)
The nominee provided evidence that he is not currently employed by Newcastle Glass Pty Ltd and that he left the company after the refusal of his visa application on 19 July 2019. He stated that he is currently working as a Solar panel installer in Sydney.
The nominee stated that he does not have an A Grade licence that permits the nominee to work on live electrical equipment for the nominated occupation of Electrician (General) – ANZSCO Code: 341111 and has not undertaken a skills assessment with Trades Skills Australia.
The nominee stated that when he worked with Newcastle Glass he was doing some servicing of equipment; assisting with installations and adjusting machines with some maintenance of the blowers, the cutting machine and maintaining the heat toughening process on the glass; equipment repairs; temperature repairs, which were checked by a licenced electrician.
Representative Submission
The Representative submitted that the nominee started with the company in 2018 and Newcastle Glass lodged a 457 visa application, which was refused in June 2019 and the nominee left the company.
It was submitted that Mr Tao took over the company and had been working for three years.
The Representative stated that the company was facing a skilled labour shortage and that local skilled employees had been subject to a search since April 2022.
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 Tribunal is satisfied on the evidence that the applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a), which is prescribed for the position of Electrician (General) – ANZSCO Code: 341111 and that the person engaged in the position will skills and competencies consistent with an occupation under s.140GB(1)(b): r.2.73(1A)(a) .
Further, the Tribunal is satisfied that the nomination was made using the approved form and fee as prescribed in the Register of Instruments: Business Visas: r.2.73(2), (3), (5) & (9) and that the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5).
The Tribunal is satisfied that the applicant has not engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B) and that the nomination includes the location/s at which the occupation will be carried out, being the environs of Newcastle, NSW within the occupation designated in ANZSCO code: 341111.
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 Tribunal is satisfied that the applicant is a genuine standard business sponsor for the purposes of the application and visa being sought with approval from 10 May 2018 that ceases on 10 May 2023 for the nominated position of Electrician (General) – ANZSCO Code: 341111.
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.
The applicant has provided the relevant identification details of the nominee for the occupational position of Electrician (General) – ANZSCO: 341111, where the qualifications retained by the nominee do not meet the criteria prescribed in ANZSCO 341111. In this regard, the nominee does not possess an A grade electrical licence and is not permitted to perform the following critical tasks required in ANZSCO: 341111:
opositioning and installing electrical switchboards (the nominee does the preparatory work but does not have an A grade licence yet);
oconnecting electrical systems to power supply.
For these reasons the requirements of r.2.72(5) are not 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. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: reg 2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: reg 2.72(7A); and
·if the Subclass 457 visa holder met cl 457.223(6), he or she must either: continue to meet cl 457.223(6); or be an exempt applicant under cl 457.223(4); or have achieved in a single attempt a test score specified in the relevant IMMI instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: reg 2.72(10)(g).
As the nominee is not the holder of a Subclass 457 visa, the requirements of regs 2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
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. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in IMMI 17/040 of the Register of Instruments: Business Visas in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
As the nominee is not a current holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
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.
As the organisation is registered business with ASIC that has applied to nominate the nominee in the position of Electrician (General) – ANZSCO Code: 341111 with an approved nomination from 10 May 2018 that ceases on 10 May 2023, the Tribunal is satisfied that the applicant has acknowledged in the application that no breach of s 245AR(1) has taken place.
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.
The Tribunal has reviewed the Department’s file and its electronic records and the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are 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 17/040 of the Register of Instruments: Business Visas 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 Tribunal is satisfied that the occupation of Electrician (General) – ANZSCO 341111 is contained in the IMMI 17/040 Register of Instruments.
For these reasons the requirements of r.2.72(10)(aa) and r.2.72(10)(b) are met.
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 17/040 of the Register of Instruments: Business Visas - 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 17/040 of the Register of Instruments: Business Visas: r.2.72(10)(AB).
The Tribunal is satisfied that the contract of employment salary of $63,000, which has escalated to a proposed $73,000 (at the time of decision and based upon the evidence) exceeds the expected remuneration arising from the minimum wage for the occupation prescribed under the relevant award and the terms and conditions of employment, approved by the Fair Work Commission, under the Fair Work Act 2009.

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 Register of Instruments: Business Visas.
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 Register of Instruments: Business Visas: r.2.72(10AB).
Based upon the contract of employment of 23 June 2022 and the evidence provided at hearing, the Tribunal is satisfied that the remuneration of the nominee exceeds the prescribed minimum for the occupation of Electrician (General) – ANZSCO 341111.
For these reasons the requirements of r.2.72(10)(cc) are met.
Certification under reg 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 or specified in the instrument IMMI 17/040 of the Register of Instruments: Business Visas;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the Register of Instruments: Business Visas;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the Register of Instruments: Business Visas; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the Register of Instruments: Business.
Based on the evidence pertaining to the nominee’s tasks associated with Electrician (General) – ANZSCO 341111 that do not include all the basic tasks required of a licenced electrician, including: positioning and installing electrical and connecting electrical systems to power supply switchboards (as the nominee only does the preparatory work but does not have an A grade licence, at the time of decision) and has no formal qualifications issued in Australia or a skills assessment undertaken by Trades Recognition Australia, the Tribunal is not satisfied the applicant has met r.2.72(10)(e)..
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 applicant provided evidence with respect to the duties of the nominee, as an employee of the business in the claimed occupation of Electrician (General) – ANZSCO Code: 341111, that included the following tasks:
oexamining blueprints, wiring diagrams and specifications to determine sequences and methods of operation
omeasuring and laying out installation reference points
oselecting, cutting and connecting wire and cable to terminals and connectors
ousing electrical and electronic test instruments to trace and diagnose faults
orepairing and replacing faulty wiring and defective parts
opositioning and installing electrical switchboards
oconnecting electrical systems to power supply
otesting continuity of circuit
The applicant stated that the nominee does not perform the following tasks that are included in the nominee’s tasks performed for the business:
opositioning and installing electrical switchboards (the nominee does the preparatory work but does not have an A grade licence yet);
oconnecting electrical systems to power supply.
On the basis of the evidence provided by the applicant the Tribunal is not satisfied that the work performed by the nominee is consistent with the occupation of Electrician (General) – ANZSCO Code: 341111.
For these reasons the requirements of r.2.72(10)(f) are not 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, unless the nominated occupation is specified in the instrument IMMI 17/040 of the Register of Instruments: Business Visas.
Whilst the nominee is not currently employed by Newcastle Glass Pty Ltd, the contract of employment provided by the applicant to the Tribunal, which is dated 23 June 2022, satisfies the Tribunal that the contract identifies the occupation and the terms and conditions applicable to that occupation, including an obligation to provide ongoing employment upon the grant of a 457 Visa.
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): regs 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 the applicant, these must have been met.
As the applicant is not seeking to employ the nominee under a work agreement, the Tribunal is satisfied these requirements do not apply.
For these reasons the requirements of regs 2.72(11) and (12) are not applicable.
For the reasons given above, 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.
Warren Stooke AM
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.

[2022] AATA 3043

15 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction