Penny Banger Pty Ltd (Migration)

Penny Banger Pty Ltd (Migration) [2021] AATA 4019 (8 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Penny Banger Pty Ltd
CASE NUMBER:  1835785
HOME AFFAIRS REFERENCE(S):          BCC2018/1270497
MEMBER:Mary Sheargold
DATE:8 October 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 08 October 2021 at 11:31am

CATCHWORDS
MIGRATION – approval of a nomination – position of Cook – salary below the temporary skilled migration income threshold – updated financial information – updated employment agreement – terms and conditions of employment no less favourable – genuine need for the employment – labour market testing – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 November 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 delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(h)(i) because the salary for the nominee set out in the employment agreement provided to the Department would have been, in the delegate’s view, below the temporary skilled migration income threshold (TSMIT).
Mr Steve Samra, a director of Penny Banger Pty Ltd (the applicant) appeared before the Tribunal via MS Teams video link on 7 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Dipen Gurung. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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.
At the time the application was made, the representative provided the Tribunal with a copy of his written request for the Department to vacate its decision on the basis of the errors made by the delegate in assessing the nominee’s salary against the TSMIT.
On 5 June 2021, the applicant provided a detailed financial statement for the Samra Family Trust, of which the applicant is the trustee company, for the financial year ending on 30 June 2020 as well as a copy of its draft tax return for the same period.
On 22 July 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information that demonstrated that the business meets all of the requirements of the criteria in r.2.72 of the Regulations at the time of the Tribunal’s decision. A response to the request for information was due by 5 August 2021.
On 5 August 2021, the applicant’s representative provided some of the information requested, including:
·a completed information request form in relation to the application;
·written submissions from the applicant’s representative dated 4 August 2021;
·an extract from the Australian Business Register for the applicant’s Australian Business Number (ABN) dated 19 July 2021;
·an extract from the Australian Securities and Investments Commission (ASIC) register for the applicant dated 19 July 2021;
·an extract from ASIC register for the business name ‘Lazy Moe’s Melton’ dated 19 July 2021;
·copies of Business Activity Statements (BAS) for the applicant for each quarter from October 2020 to March 2021;
·copies of detailed financial statements for the Samra Family Trust for the financial years ending on 30 June 2020 and 30 June 2018;
·an extract from the applicant’s payroll for the Lazy Moe’s Melton restaurant business for the 2020-21 financial year;
·payslips for the nominee;
·market salary survey information for the nominated position of Cook;
·photographs of the applicant’s Lazy Moe’s Melton restaurant business, food gallery, and copies of the menu;
·an organisational chart for the applicant’s Lazy Moe’s Melton restaurant business, where the nominee works;
·a copy of the most recent employment agreement between the applicant and the nominee;
·copies of the nominee’s PAYG statements for each financial year ending on 30 June from 2018 to 2021 inclusive;
·a position description for the nominated position;
·a copy of the nominee’s PTE Academic English language test report dated 27 July 2018; and
·a copy of the applicant’s most recent standard business sponsorship approval covering the period from 17 May 2018 to 17 May 2023.
After the hearing, the applicant provided an updated employment agreement for the nominee dated 7 October 2021.
In reaching its findings, The Tribunal has considered all of the documentation provided (including in the Departmental file), as well as the evidence from Mr Samra and Mr Gurung at the hearing.
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 has considered the information in the Departmental file and is satisfied that:
·the applicant has identified Mr Dipen Gurung, the proposed applicant for a Subclass 457 visa, who will work in the nominated occupation of Cook, ANZSCO 351411;
·the nomination was made using the approved form, which also included the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and
·the nomination includes the location at which the occupation will be carried out, being Melton, Victoria.
Based on all the evidence before it, the Tribunal is satisfied that the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant has provided a copy of its Notice of Decision, Sponsorship Approval Notice dated 13 August 2018, confirming the applicant’s approval as a standard business sponsor for 5 years from 17 May 2018 to 17 May 2023. Therefore, the Tribunal is satisfied that the applicant is an approved standard business sponsor.
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 nomination identifies the proposed applicant for the visa, Mr Dipen Gurung, who will work in the nominated position. Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. 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 an instrument in writing 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
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 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.
The applicant clearly identified in the application form that it had nominated a Cook to work in its business in Melton, Victoria. The relevant ANZSCO code, 351411, is included in the application.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s 245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.
The applicant has provided the required certification as part of the nomination application. Therefore, 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 regs 1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an ‘associated person’.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: reg 2.72(10)(b).
The applicant is an approved standard business sponsor. It nominated the position of Café or Restaurant Manager, which is an occupation specified in IMMI 17/060, and is subject to inapplicability condition 7, that the position in involved in mass production in a factory setting, and inapplicability condition 8, that the position is in a limited service restaurant.
Based on the evidence before it, the Tribunal finds that the occupation of Cook, ANZSCo 351411, is applicable to the nominee in accordance with IMMI 17/060. The position is not in a mass production factory setting nor is it in a limited service restaurant. Therefore, the requirements of r.2.72(10)(aa) are met.
The instrument does not require that the nomination be supported in writing by a specified organisation. Therefore, the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009 (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).
At the hearing, the Tribunal noted its concerns regarding the employment agreement provided by the applicant in response to the information request made under s.359(2) of the Act. Specifically, the Tribunal noted that, as the Restaurant Industry Award 2020 MA000119 (the Award) applied to the nominee, clause 20.6 of that Award was invoked because the nominee is employed on an annualised salary. Clause 20.6 of the Award requires that staff on an annualised salary be paid at least 125% of the minimum weekly rate set out in the Award. The Tribunal noted that the highest grade of Cook in the Award was Grade 5, and this was a Level 6 employee under the Award. Mr Samra confirmed that the nominee is the applicant’s head cook at Lazy Moe’s Melton and therefore is graded at the highest level under the Award.
The Tribunal noted that the minimum weekly rate for a Level 6 employee under the Award is $957.60 per week, which equates to a minimum annual salary of $49,795.20. Multiplied by 125%, the minimum pay to meet the Award requirements under clause 20.6 would be $62,244.00 per annum. The Tribunal noted that under the employment agreement provided by the applicant, the nominee’s annual salary was $57,117.32. Mr Samra offered to increase the nominee’s salary to meet the requirements under the Award and provided an updated employment agreement to the Tribunal that day. On 7 October 2021, the Tribunal received an updated employment agreement for the nominee indicating a base salary of $62,300 per annum plus 10% superannuation.
Therefore, based on the updated agreement before it, the Tribunal is satisfied that the nominee’s proposed salary of $62,300 plus superannuation is no less favourable than the relevant Australian equivalent.
The Tribunal has considered the terms of the employment agreement and notes the provisions with respect to leave, notice and termination are in accordance with the National Employment Standards and the Fair Work Act 2009 (Cth). Accordingly, the Tribunal is satisfied that the nominee’s terms and conditions of employment are c than the relevant Australian equivalent.
Further, the Tribunal finds that there is no substantial contrary evidence that the nominee’s terms and conditions of employment, including in relation to remuneration, are less favourable than the terms and conditions of employment that would be offered to the equivalent Australian employee.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: 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: reg 2.72(10AB).
The Tribunal is satisfied that as the base rate of pay of the nominee’s annual earnings is proposed to be $62,300, the base rate of pay for the nominated position is greater than the current TSMIT of $53,900.
Based on the evidence before it, the Tribunal finds that r.2.72(10)(cc) is satisfied.
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 instrument IMMI 13/067;
·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 IMMI 13/067; 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.
Based on the information before it, including the nominee’s curriculum vitae, qualifications, the position description for the role, and photographs of the nominee performing the nominated occupation of Cook, the Tribunal is satisfied that the requisite and relevant certifications have been made. For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine

Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal has considered the BAS and the financial reports provided for the applicant’s business for the previous 2 financial years, as well as the statements from Mr Samra at the hearing regarding the integral role the nominee plays within the Lazy Moe’s Melton restaurant business. The Tribunal notes that the applicanthas significant annual turnover, significant purchasing costs, and a high annual wage expenditure, even in spite of the long term lockdowns in greater Melbourne during the Covid-19 pandemic.
Based on all the evidence before it, the Tribunal is satisfied that the nominated position is a genuine Cook position within the applicant’s business. Therefore, the requirements of reg 2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The delegate refused to approve the application on the basis that the employment agreement offered a salary determined to be below the TSMIT. Respectfully, the Tribunal notes that the nominee’s salary set out in the employment agreement provided to the Department was $54,500, which is above the TSMIT of $53,900. The Tribunal notes that the delegate, in relying on the minimum weekly pay rate in the Award to further find the nominee’s salary was below the TSMIT, failed to consider clause 20.6 of the Award and increase that minimum rate by 125% to comply with the Award requirements – in which case, the TSMIT would have been exceeded again. In any case, the Tribunal has discussed its concerns regarding the nominee’s salary as compared with the Australian equivalent and, as set out above, the applicant has immediately rectified the nominee’s salary to reflect the requirements in the Award.
The Tribunal has been provided with the nominee’s updated employment agreement dated 7 October 2021, which sets out the terms and conditions of employment and confirms the annual salary of $62,300, exclusive of superannuation.
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.
The applicant is not a party to a work agreement, and for this reason, the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in 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 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 IMM 13/136. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The applicant provided evidence that it completed labour market testing as required in IMMI 13/136 when it submitted this application to the Department. The Tribunal has considered all of the information on the Departmental file pertaining to labour market testing, including the length of advertising, copies of the advertisements placed, statements relating to their cost, the results of the advertisements and the applicant’s response. The Tribunal notes the applicant’s contention that the only responses received to the advertising were from other candidates also seeking visa sponsorship, and that no Australian citizens or permanent residents made applications for the position. The Tribunal notes that the applicant completed the labour market testing as required for this application while the nominee was, at that time, holding a Subclass 457 visa. The Tribunal accepts Mr Samra’s written statements regarding the difficulties his business has faced recruiting Australian workers for its Cook roles across the Lazy Moe’s restaurant group.
Based on all the evidence before it, the Tribunal is satisfied that the labour market testing requirements in s 140GBA are met.
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.
Mary Sheargold
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.

[2021] AATA 4019

8 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction