Orange International College Pty Ltd (Migration)

Orange International College Pty Ltd (Migration) [2021] AATA 3160 (13 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Orange International College Pty Ltd
CASE NUMBER:  1826852
HOME AFFAIRS REFERENCE(S):          BCC2018/1270156
MEMBER:Wan Shum
DATE:13 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 13 August 2021 at 11:13am
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – tasks of position and number of other employees doing similar tasks – previous application nominating different occupation and tasks – previous occupation removed from skilled occupation list – comparison of tasks of positions and ANZSCO classifications – commonality between occupations – nominee’s skills and experience, and more complex and higher-level responsibilities – business model and growth – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140GB(2)
Migration Regulations 1994 (Cth), rr 2.72(10)(f), 2.73
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 31 August 2018 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 16 March 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 occupation nominated in this case was Marketing Specialist. The person identified for the position was Ms Amelia Tan (the nominee), who lodged an application for a Subclass 457 visa in association with this nomination.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(f), finding that the position associated with the nominated occupation was not genuine.
As a consequence, the nominee’s visa application was refused.
The applicant and the nominee have sought review of these decisions and both parties are represented in relation to the review by a registered migration agent.
Mr Chawla, the Chief Executive Officer, appeared on behalf of the applicant by video conference on 6 July 2021 to give evidence and present arguments to the Tribunal using MS Teams. The Tribunal also received oral evidence from Mr Aditya Shah, the Marketing Director. The hearing was held concurrently with the nominee’s matter and she also gave evidence. The representative was present throughout from the same location.
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 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.
On the information before the Tribunal, Orange International College Pty Ltd was registered as a business in December 2013 and as a registered training organisation from 2015. The applicant operates a private educational institute offering a small number of courses to international students under CRICOS provider number 03446A.[1] According to information on the myskills.gov.au website, the applicant was established in 2013 and became operational in the year 2015 as a registered training organisation to provide ELICOS to international students and VET programs to domestic as well as international students. The CEO told the Tribunal that the first student intake occurred in January 2016. He said that there are now plans to offer full fee courses to domestic students, to expand the target market. The CEO explained that the business model focuses on recruiting students through education agencies, which means developing and maintaining relationships with the agencies is critical.
[1] In Australia, training providers must be approved for registration on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) before they can teach overseas students (>
The occupation nominated in this case was Marketing Specialist (ANZSCO 225113). The person identified for the position was Ms Amelia Tan.
The responsibilities and main tasks of the position as set out in the nomination form used the same wording:
Responsibilities Developing and implementing a marketing strategy, Execution of the strategic communication and marketing plan in conjunction with the Marketing Director, Contribute to the development of the Marketing Plan and execution of brand collateral, style guide, image library, content management, advertising, events and media relations. Manage and ensure compliance with brand guidelines in line with organisational strategy. Ensure all allocated initiatives within the plan are executed on time, on budget and to agreed business outcomes, Measure and report performance of marketing campaigns. Support business growth and new services. Preparation and presentation of marketing or other reports and analysis as required, In conjunction with the Marketing Director support in the delivery of strategic outcomes for the Marketing Team, Ensure effective progress of work flow for the Marketing Department, Responsibility for adherence to marketing budget, Ensure all marketing material and documentation are up to date at all times, Coordination of special and ongoing projects, Contribute to and support campaigns by executing in an integrated manner across multiple channels including but not limited to direct marketing, digital, events and public relations, contact designers, creatives and distribute printed corporate and course materials. Run the production and placement of all advertising. Assist Marketing Team to ensure all documents are on brand and meet communication objectives, Manage ail promotional offers that support agencies and student communication. Ensure the CRM is regularly updated to reflect all activities, Provide marketing and communication support to internal stakeholders. Produce valuable and engaging content for social media that attracts target groups, Manage company website as an engaging and productive communication and marketing tool, Development and implementation of Content Management, Identify opportunities for expansion of digital presence and manage projects
The duties of the position as set out in the position description provided with the nomination included a number of ‘Key Success Indicators’ with an outline of the tasks associated with each. The tasks are largely the same as those set out in the form.
According to the employment contract of March 2018, this position reports to the CEO and Marketing Director and is part of the Operations – Marketing division/group of the College. In the organisation chart provided at the time, it showed that the position was given the title ‘Sales/Marketing Representative’ and reported to a Marketing Director. The other position which reported to the Marketing Director was that of ‘marketing specialist’ and the Marketing Director appears to be responsible for the IT service which appears to be an external IT provider referred to as ‘Go Click On’.
The delegate decided not to approve the nomination having found that the position associated with the nominated occupation of Marketing Specialist was not genuine as required by reg 2.72(10)(f). The delegate was concerned that the applicant already employed a Marketing Manager and another marketing specialist and did not consider the size of the business reflected that the position would be mainly engaged in the tasks of a Marketing Specialist. The application the subject of this review is the second nomination made in relation to the nominee. The first nomination was made in respect of the same nominee for the position in the occupation of Technical Sales Representative but was unsuccessful. It appears from Departmental notes that the nomination for Technical Sales Representative was not approved due to the view that the position was more of a marketing role.
The organisation chart provided to the Tribunal prior to the hearing had the job title of the nominated position listed as ‘Marketing Specialist (International) (South East Asian and Greater China market)’. There were no other Marketing Specialist positions within the division, though there was a ‘Marketing Manager (Domestic)’, two ‘Marketing Manager (International)’ positions as well as a ‘Digital Marketer’. On the day of the hearing, a further organisation chart of the marketing division was provided. In this version, the division now has 13 positions, which includes the Marketing Director, and positions focused on international students and domestic students. The international market has a ‘Head of Sales and Marketing (International)’, with two Marketing Officers and two Marketing Specialist positions. On the domestic side, there are two positions of Marketing Manager and Marketing Officer (vacant). There were also five positions in the Digital Marketing Support Team and an Admissions Officer.
At the hearing, the change of the occupation from Technical Sales Representative was raised with the CEO; he said he thought it was potentially due to a change in the organisational structure but wished to seek clarification and check over their records. A written explanation was provided from the Director of Operations following the hearing, essentially stating that having examined the ANZSCO classifications, their view was that some of the responsibilities of the position as Technical Sales Representative overlapped with both the occupations of Marketing Specialist and Technical Sales Representative, although claiming that it was more business orientated (Marketing Specialist) than client orientated (Technical Sales).
In the statement, the Director of Operations claimed that the nominee had worked from 16 January 2017 to 15 March 2018 as a Technical Sales Representative (nec) but that around the time of the lodgement, the management of the College decided to promote her and offer her more complex and higher level responsibilities to maximise the utilisation of her skills and experience. It was claimed that the nominee’s skills and experience were found to be ideal for the position of a Marketing Specialist rather a Sales Representative as it was a more senior position. However, the concern is that the program is to allow businesses to fill a genuine vacancy rather than enable an employer to secure the engagement of a particular person.
The Tribunal further notes that the occupation of Technical Sales Representative (which includes educational sales representative) was effectively removed from the Skilled Occupation list for nominations made on or after 17 January 2018, when IMMI 18/004 came into effect due to the imposition of caveats which meant that sales positions which predominantly involved selling educational courses to individual students could not be approved. This gave rise to concerns that the position was changed to overcome the removal of the nominated occupation from the SOL, while the response about the change in occupation appears to suggest that the position changed to meet the skills of the nominee rather than there being a need for a Marketing Specialist.
The Tribunal has thus considered whether it is a genuine Marketing Specialist position on the evidence before it, which includes the employment contract, samples of work and the oral evidence given at the hearing about the duties and responsibilities of the position. In undertaking this task, it has referred to the ANZSCO classifications for the occupations of Marketing Specialist and Technical Sales Representative (nec). According to ANZSCO, the occupation of ‘marketing specialist (225113)’ is a person who ‘[i]dentifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services’. The occupation of 225499 Technical Sales Representative (nec) comes within the unit group of Technical Sales Representatives who ‘represent companies in selling a range of industrial, medical and pharmaceutical goods and services to industrial, business, professional and other establishments.’ While each occupation belongs to different Unit Groups, they belong to the same Minor Group in ANZSCO of ‘Sales, Marketing and Public Relations Professionals’ who plan, develop, coordinate and implement programs of information dissemination to promote organisations, goods and services, and represent companies in selling a range of technical, industrial, medical, pharmaceutical and ICT goods and services. The Tribunal accepts that there is some degree of commonality between the two occupations, having regard to the conceptual model adopted for ANZSCO which uses a combination of skill level and skill specialisation as criteria to design major groups which are formed by grouping together sub-major groups using aspects of both skill level and skill specialisation. Minor groups are distinguished from each other mainly on the basis of a finer application of skill specialisation than that applied at the sub-major group level. Within minor groups, unit groups are distinguished from each other on the basis of skill specialisation and, where necessary, skill level. The occupations are distinct from each other but have a common objective as both are ‘Sales, Marketing and Public Relations Professionals’.
The duties listed in the position description provided with the more recent contract sets out the role as “vital to improving [the nominator’s] market position and business growth” and “will focus on establishing, maintaining and building relationships with Orange International College representatives/agents, identifying new business opportunities while maintaining awareness of current market conditions”. The duties of the position include developing and implementing a marketing mix strategy, conducting market research, contributing to marketing campaigns and supporting the development and implementation of advertising and promotion, and producing valuable and engaging content for social media (Facebook, lnstagram, YouTube, etc) and the website that attracts target groups; the Tribunal considers these duties align with the Unit Group of Advertising and Marketing Professionals.
In terms of whether the position is sales orientated and does involve selling educational courses to individual students, the evidence from the CEO and Marketing Director at the hearing was that they have recently engaged two Marketing Officers who are in sales representative roles, with sales targets in the form of student numbers. Their evidence was that previously, they had employed Marcelo Lusardo in that role. The Tribunal noted that Mr Lusardo’s position title according to the previous organisation chart from April was Marketing Manager and Mr Chawla explained that this was simply a title variation which was used because the community Mr Lusardo dealt with did not view/respect the title of ‘officer’. When asked about bonuses or commission for meeting sales targets, Mr Shah explained that only the Marketing Officers received these forms of payments. Following the hearing, it became apparent that an annual bonus is allocated to the Marketing Specialist. The copy of the employment contract signed in October 2020 refers to Key Performance Indicators (KPIs) in the section about remuneration. The attachment sets out a bonus specified payment paid on an annual basis if the KPIs are met. The Tribunal considers the KPIs listed are marketing based and do not appear on the face of it to be related to student numbers or other such sales targets.
While there does appear to be some activities Ms Tan has undertaken which are targeted to individual students, such as the video Ms Tan appears in with an education agent describing some of the courses, the duties of the position on the whole appear consistent with the ANZSCO description of Marketing Specialist and the Tribunal has formed the view that the position of Marketing Specialist (International) is not a sales role, there being ‘Marketing Officers’ employed in those positions.
In assessing the genuineness of the position, the Tribunal has also considered whether the position in this nomination is a Marketing Specialist position. In this regard, the Tribunal notes that the applicant employs a Marketing Director and as noted above, gave evidence that they had recently re-engaged the other marketing specialist on a part-time basis who will be based in Hobart; she had been on extended maternity leave. The organisation chart provided on the day of the hearing includes the second marketing specialist, whereas the one provided in April 2021 did not. The Tribunal was informed that the nominee has been employed in the position on a full-time basis for a few years already, awaiting the outcome of the review, during which she has undertaken various marketing activities to promote the College to international students in Melbourne and also Hobart as evidenced in the emails and sample work provided. The Tribunal has also had regard to the business model, which focuses on recruiting students through education agencies, as well as the current size of the business, with a turnover of over $9 million in the most recent financial year, which is around eight times the turnover from when the application was initially made. While the response to the change of occupation did raise a concern as to whether it was a genuine vacancy when the nomination was made, the Tribunal accepts that the size and nature of the business at the current time support the need for a full-time Marketing Specialist to work with a manager within the marketing division focused on the international student market.
The Tribunal finds that the position associated with the nominated occupation in this application is genuine and that the requirements of reg 2.72(10)(f) are met.
The Tribunal will now proceed to consider whether the remaining requirements are met.
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 reg 2.73.
The Tribunal is satisfied, from having reviewed the documents on the Department’s file, that:
·the applicant nominated an occupation under s 140GB(1)(b) (being Marketing Specialist) and thus meets reg 2.73(1A)(a);
·the applicant identified Ms Tan, the nominee, as the person who would work in that occupation, and thus meets reg 2.73(1A)(b);
·the nomination was made using the approved form and fee, and thus meets reg 2.73(2),(3), (5) and (9);
·the applicant identified the nominee, Ms Tan, in the nomination, thus meeting reg 2.73(4)/(4A) and (5); and
·the nomination included the location at which the occupation would be carried out, and the 6-digit ANZSCO code for that occupation (ANZSCO code 225113), thus meeting reg 2.72(4).
The application form included a question requiring certification that the nominator had not engaged in conduct that constitutes a contravention of s 245AR(1) of the Act: reg 2.73(4B); as well as the relevant certifications mentioned in reg 2.72(10) or reg 2.72(11): reg 2.73(4)/(4A).

For these reasons, the requirements of reg 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.
Departmental records indicate that the applicant was approved as a standard business sponsor for a five-year period commencing 15 November 2017. That sponsorship remains in force and the Tribunal is satisfied that the applicant, at the time of this decision, is a standard business sponsor.
For these reasons the requirements of reg 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.
Based on information set out in the application form, the Tribunal is satisfied that the applicant has identified Ms Tan as the person to undertake the nominated occupation and that she has applied for a Subclass 457 visa.
For these reasons the requirements of reg 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.
The person identified to work in the nominated position has not held a Subclass 457 visa, such that the requirements of reg 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;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
On the basis of information provided in the application, the Tribunal is satisfied that the applicant provided the name of the occupation, Marketing Specialist, and the corresponding 6-digit ANZSCO code as part of the nomination. The street address where the person will be employed was given as Collins Street, Melbourne on the nomination form and the Tribunal finds that the nomination gave the location for the position at which the nominated occupation is to be carried out.
For these reasons the requirements of reg 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.
As indicated above, the applicant provided the required certification as part of the nomination by responding ‘yes’ to the relevant question on the nomination form.
For these reasons the requirements of reg 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 regs 1.13A and 1.13B.
Having reviewed the records available to the Tribunal, it is not aware of any adverse information known to Immigration about the applicant or a person associated with the applicant. Given this, the requirements of reg 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 instrument IMMI 18/004, 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: reg 2.72(10)(b).
The inapplicability conditions for the occupation of Marketing Specialist, by reference to the Short-Term Skilled Shortage List in IMMI 18/004, are:
2 the position has a nominated base salary of less than AUD65,000.
11 The position:
(a) is based in a front-line retail setting; or
(b) predominantly involves direct client transactional interaction on a regular basis.
19 the position is in a business that has an annual turnover of less than AUD1,000,000.
On the information before the Tribunal, the position has a nominated base salary of more than $65,000, and the position is not based in a front-line retail setting. Nor does it predominantly involve direct client transactional interaction on a regular basis, with students being recruited through education agencies. Furthermore, the annual turnover of the business was over $1 million. For these reasons the requirements of reg 2.72(10)(aa) are met.
There is no requirement for the nomination to be supported by a specified organisation. For these reasons the requirements of reg 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 (Cth).
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: reg 2.57(3A). ‘Earnings’ is defined in reg 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: reg 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: reg 2.72(10AB).
The contract of employment of October 2020 sets out the terms and conditions of employment and indicates that the nominee’s gross salary will be $80,000 and that superannuation will be paid in accordance with the applicable legislation.
The annual earnings of the nominee would thus be less than the salary of $250,000 specified in IMMI 10/028. Accordingly, the requirement of reg 2.72(10AA) must be met.
In this case, there is no Australian equivalent performing equivalent work at the same location and the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.
It was submitted to the Department at the time that the salary offered is the same as that which was currently being paid to the nominee and provided copies of recent employment ads to demonstrate the average market salary for a Marketing Specialist in Melbourne. However, this information is now outdated, and it is necessary to consider the current average market salary.
In accordance with IMMI 09/113, the Tribunal has taken into consideration the 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.
The Tribunal has regard to the following sources of information which have been provided:
·A copy of the applicable Award, which is Educational Services (Post-Secondary Education) Award [MA000075] Published 1 July 2021;
·Information from the Payscale website that the average salary in Melbourne, Victoria for an early career Marketing Specialist is $65,243.
The salary offered for the nominated position is above the average salary for the occupation based on the salary survey information from the Payscale website ( The salary offered is therefore above the average salary that would be provided to an Australian for performing equivalent work at the same location.
Given this, the Tribunal is satisfied that the salary of the nominee is no less favourable than that which would be offered to the relevant Australian equivalent in the same workplace.
The Tribunal is further satisfied that the contract of employment provided has standard provisions relating to leave that are consistent with those in the Fair Work Act 2009.
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.
For these reasons the requirements of reg 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 (currently $53,900).
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: reg 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: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.
Likewise, the requirement in reg 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 (currently $250,000): reg 2.72(10AB).
The Tribunal finds from the evidence provided that the nominee's annual earnings will be $80,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy reg 2.72(10)(cc).
The Tribunal is satisfied that the nominee's annual earnings exceed the TSMIT, and that (based on the market salary rate information assessed in the section above) 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 also be greater than the TSMIT.
For these reasons, the Tribunal is satisfied that the requirements of reg 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: reg 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 relevant instrument;
·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 relevant instrument;
·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 relevant instrument; 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 relevant instrument.
On the evidence provided, the applicant only operates a business in Australia. The relevant instrument for the nominated occupation is IMMI 13/067.
From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
For these reasons the requirements of reg 2.72(10)(e) 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, unless the nominated occupation is specified in a written instrument.
The Tribunal was provided with a contract of employment for the nominee signed on 1 October 2020 indicating that the nominee’s salary is $80,000 plus superannuation. The applicant has also provided confirmation that the position is ongoing and that the nominee had been provided with an extension of a further year.
For these reasons the requirements of reg 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): reg 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 a party to a work agreement, the requirements of regs 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 ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing (LMT) 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.
Pursuant to s 140GBC(3), the position would be exempt from LMT if either or both of the following are required for the nominated position, in relation to the nominated occupation: a relevant associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification; three years or more of relevant experience, other than protected experience; and the nominated occupation is specified for the purposes of this subsection under subsection (4).
The nominated occupation of Marketing Specialist is a Skill Level 2 occupation in ANZSCO and would thus be exempt from labour market testing under IMMI 13/137. In terms of the qualifications or experience required for the position, it was indicated on the nomination that a minimum of five years of relevant work experience was required. The Tribunal finds that the position meets the minimum level of relevant experience specified in s 140GBC(3).
For these reasons, the labour market testing requirements in s 140GBA are not applicable.
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.
Wan Shum
Member

[2021] AATA 3160

13 August 2021

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