PHENOMENON CONSTRUCTION PTY LTD (Migration)

[2018] AATA 2918

PHENOMENON CONSTRUCTION PTY LTD (Migration) [2018] AATA 2918 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Phenomenon Construction Pty Ltd

CASE NUMBER:  1612901

DIBP REFERENCE(S):  BCC2016/655216

MEMBER:Alison Mercer

DATE:27 June 2018

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 27 June 2018 at 4:36pm

CATCHWORDS

Migration – Nomination – Subclass 457 – Genuine position – Wall and Floor Tiler – Issue of self-sponsorship – Indicia of non-genuineness outweighed by genuine need – Labour market testing exemption due to Korea-Australia Free Trade agreement – Decision under review set aside\

LEGISLATION

Fair Work Act 2009
Migration Act 1958, s 140GB, 245AR(1), 359A, 359(2)
Migration Regulations 1994, Schedule 2, rr 1.13A and 1.13B, 2.57A, 2.72, 2.73, cl 457.223

CASES

Qiao v MIAC [2008] FMCA 380
Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 July 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant, Phenomenon Construction Pty Ltd, applied for approval on 15 February 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f), which requires that the position associated with the nominated occupation is genuine. The delegate noted that the nominated occupation was Wall and Floor Tiler (Australian and New Zealand Standard Classification of Occupations – ANZSCO code – 333411) and that the applicant’s business involved tiling. However, the delegate was not satisfied that the current size and scope of the business supported the need for an additional Wall and Floor Tiler, or that the nominated position would actually, regularly perform all of the ANZSCO tasks listed for that occupation. The delegate noted the claim by the applicant that its business was expanding, but gave this little weight in the absence of any documentary evidence to substantiate this claim.

4. The Tribunal received a review application on 16 August 2016.  It was signed on behalf of the applicant by one of its directors, Mr Taesu Kim. The review application was accompanied by a copy of the delegate’s decision and an authority by which Mr Kim appointed a registered migration agent, Ms Yeon Jeong Park, as the applicant’s representative and authorised recipient for correspondence.

5. On 17 July 2017, the Tribunal wrote to Mr Kim via his agent to invite them to attend a callover on 11 August 2017, the aim of which was to ascertain whether the applicant’s case was ready to be actively considered and/or set down for hearing.

6. Mr Kim attended the callover on 11 August 2017, although his agent did not. Mr Kim and the Tribunal were assisted by the services of an interpreter in the Korean and English languages.

7. Mr Kim clarified that he had worked with his nominee, Mr Jin Heon Lee, when they were both sub-contractors doing tiling work, and that now that he had established his own business, he wished to hire Mr Lee to work for him as a Wall and Floor Tiler. Mr Kim said his accountant advised him to put ‘construction’ in the name of the company when he incorporated his own business, but the focus of his business was tiling (although the company did some other construction work such as waterproofing and stone work). Mr Kim said that he was a company director but also worked in the business as a Tiler. At present, he used sub-contractors to meet the demand but the costs of this were high, which is why he wanted to directly employ the nominee.  He said that there was no equivalent Australian employee to the nominee within the business, as although Mr Kim did tiling work, he paid himself a director’s wage of $60,000 per year.

8. The Tribunal discussed with Mr Kim the fact that it required current information about the applicant’s business that demonstrated that it met all the criteria in r.2.72 (not just the criterion in dispute). The Tribunal also raised with Mr Kim the fact that the Department’s records indicated that the applicant’s approval as a standard business sponsor would shortly cease on 29 September 2017. The Tribunal explained that this was relevant to the review, as without approval as a standard business sponsor, the applicant could not have its nomination of Mr Lee approved. It indicated to Mr Kim that he would need to have the applicant lodge a new application for approval as a standard business sponsor as soon as possible. The Tribunal further indicated that after the callover, it would write to Mr Kim via his agent about these matters.

9. On 17 August 2017, the Tribunal wrote to Mr Kim via his agent pursuant to ss.359A and 359(2) of the Act to invite him (or another authorised officer of the company) to provide information in writing demonstrating that the applicant satisfied all of the criteria in r.2.72 (not just the criterion in dispute, r.2.72(10)(f)). A copy of r.2.72 was attached for reference. Examples of the kinds of information that would assist the Tribunal were included in the letter, and the information was requested by 31 August 2017. In addition, the Tribunal noted that the applicant’s approval as a standard business sponsor would cease on 29 September 2017, and that this was relevant to the review because if the applicant was not an approved standard business sponsor, it would not satisfy r.2.72(4) and this would be a reason to affirm the decision to refuse to approve the nomination. The Tribunal invited Mr Kim to provide comments or a response to this information by 31 August 2017.

10. On 31 August 2017, the Tribunal received the following from the applicant’s agent:

• submission from the agent dated 31 August 2017;

• position description for the nominated position;

• copy of biodata page of the nominee’s Korean passport;

• copy of Mr Kim’s Victorian driver’s licence;

• various invoices, variously dated, for work undertaken by the applicant;

• profit and loss statement and balance sheet for the applicant for 2015/16 financial year;

• applicant’s company tax return for 2014/15 financial year; and

• Department invoice for new application for approval as a standard business sponsor made by the applicant on 31 August 2017.

1. In her submission, the applicant’s agent made the following points (in summary):

• an organisational chart showing reporting lines would be provided shortly, as would the applicant’s most recent financial statements, which were anticipated to be available in the next 2 weeks and to show stable growth by the applicant;

• an updated contract of employment would also be shortly provided and in the meantime, the applicant had applied for new approval as a standard business sponsor to the Department; and

• there was no equivalent worker to the nominee, and remuneration survey data would be provided shortly to substantiate that the nominee’s terms and conditions of employment would not be less favourable than those that would be offered to an equivalent Australian employee.

1. On 5 September 2017, the applicant’s agent provided:

• a copy of the applicant’s 2016/17 financial statements; and

• its 2016/17 company tax return.

1. On 24 November 2017, the applicant’s agent provided a copy of a letter from the Department dated 17 November 2017 approving the applicant as a standard business sponsor from 17 November 2017 to 17 November 2022.

2. On 19 March 2018, the Tribunal wrote to Mr Kim via the agent to invite him to attend a hearing on 6 April 2018 on behalf of the applicant. The Tribunal also requested that the nominee, Mr Jin Heon Lee, be available to give evidence as a witness at this hearing.

3. On 28 March 2018, the applicant’s agent requested that the hearing be rescheduled as Mr Kim had had to return to South Korea due to ill health in the family and was likely to be out of Australia until approximately 12 April 2018.  The Tribunal agreed to this on 29 March 2018, and on the same date it wrote to invite Mr Kim to a hearing on 1 May 2018.

4. On behalf of the applicant appeared before the Tribunal on 12 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Jin Heon Lee. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. Mr Kim told the Tribunal that the applicant company was initially set up in May 2015 by the nominee, Mr Lee, and his wife. However, in August 2015, Mr and Mrs Lee had to return to Korea for family reasons. Mr Kim said that he then became director and took over. Mr Kim said he had worked with Mr Lee for about 2 years by this stage, during which time they worked as tilers for another employer. He knew that he wanted to work with Mr Lee again on a more established basis as he knew that they could trust each other. Mr Kim said that he wasn’t ready to do so when Mr Lee initially set up his own business, but he was willing to take it over when Mr and Mrs Lee had to leave Australia. In response to the Tribunal’s query, Mr Kim said that he and Mrs Lee are the current directors of the company.  He said that the reason for this is that he wanted to assure Mr and Mrs Lee of his regard for their interests.  He holds 50% of the shares and Mr and Mrs Lee hold 50%, but he did not have to pay any purchase money to Mr and Mrs Lee to acquire this interest.

6. Mr Kim said that when the company started, it had 2 staff. One was a student who worked part time, and the other was a full time sub-contractor. At the time, Mr Kim was working as a sub-contractor himself for various employers. Mr and Mrs Lee returned to Australia in or about August 2015, although Mr Kim was not sure what visas they held at this time. Mr Kim confirmed that he is an Australian citizen. He originally came to Australia as an international student, then obtained permanent residence and citizenship. Mr Kim said that Mr Lee and his wife had also come to Australia as students originally, with Mr Lee studying automotive technology and his wife studying commercial cookery.

7. The Tribunal raised with Mr Kim the fact that the Departmental view about ‘self sponsorship’ for subclass 457 visa applicants (that is, being nominated by a company which they had set up) changed to become more restrictive around this period, and that the Tribunal might conclude that the fact that Mr Kim was now a director of the company that was originally set up by Mr and Mrs Lee to sponsor/nominate themselves was an arrangement solely to get around the prohibition on self-sponsorship. The Tribunal indicated that it might not consider the position to be genuine if it concluded that this was essentially a sham arrangement.

8. Mr Kim told the Tribunal that as far as he knew, Mr and Mrs Lee were aware of the Department’s policy change regarding ‘self-sponsorship’ and they probably were concerned that both of them remaining directors of the applicant company might hinder their visa application prospects. However, he (Mr Kim) was clear that he wished to be a director alongside Mrs Lee, as a gesture of his good faith in their genuine joint business venture. Mr Kim said that he drew a monthly wage from the company, but Mr Lee did  not as neither he nor Mrs Lee had permission to work on their current visas.

9. Mr Kim confirmed that he worked full-time as a tiler for the business and used additional sub-contractors as needed. The business had an accountant and Mr Kim did the rest of the paperwork that was needed. The Tribunal drew to Mr Kim’s attention the fact that from the financial statements provided, there appeared to be a significant downturn in turnover between the 2015/16 and 2016/17 financial years and queried what the reason for this was. Mr Kim said that the size of the business had changed: in 2015, there was Mr Lee, the part time worker and the full time sub-contractor. Therefore, the revenue generated was quite high. By the 2016/17 financial year, Mr Lee was no longer able to work in the business and the other staff left, so only Mr Kim was still working within the business on a full-time basis, and its capacity to take on work was more limited. Mr Kim said that he did take on sub-contractors if he got a big enough job to justify this (for instance, the applicant company received work from Stanmore, a large tiling company that had big projects, such as redoing tiling for aged care facilities and large retailers such as Coles and Woolworths, which it assigned to the applicant company). Mr Kim estimated that 90% of the applicant company’s work came from Stanmore and that this was likely to continue as they had been working together for about 4 years.

10. When asked about Mr Lee’s background, Mr Kim said that Mr Lee had worked in Korea as a tiler, and had undertaken a range of different jobs while in Australia, including tiling and cooking. The Tribunal raised with Mr Kim whether it was financially feasible for the applicant company to pay the proposed salary of $64,000 per year to the nominee, given its turnover for 2016/17 was $182,000 and Mr Kim was paid a salary of $60,000. Mr Kim said that he believed the company would be in a position to do this as he and Mr Lee were confident of their ability to generate greater turnover once Mr Lee was approved to return to work in the business.  Mr Kim said that having 2 tilers did not just double the business’ capacity to generate income – there was a kind of synergy effect, which Mr Kim knew from past experience. He said that it frustrated him to have to pass on a $100,000 job the previous year due to limited capacity. He felt that the business could have done this job if both he and Mr Lee were working in it.

11. Mr Kim told the Tribunal that it was not easy to find good tilers in Australia and he knew, and was confident in, Mr Lee’s tiling skills and his work ethic. He noted that fixing poor work was much worse than taking the time to get the work right from the start, which Mr Lee had the skills to do. He also noted that part time workers (such as overseas students and working holiday visa holders) did not have the required level of skill to do the standard of work required by the company, but Mr Lee did. In response to the Tribunal’s query, Mr Kim said that it was not easy to find qualified tilers locally and he wanted someone he could work cooperatively with to build the business in the longer term.

12. The Tribunal asked Mr Kim how Mr Lee managed to do tiling work given that he had relatively limited English skills.  Mr Kim responded that he had worked with Mr Lee for several years, and from his observations, there were no real issues with Mr Lee’s comprehension and ability to do jobs as complex language skills were not required to do tiling work.

13. The Tribunal again raised the issue with Mr Kim as to whether the nominated position was genuine, or whether he was just helping out a friend. Mr Kim acknowledged that the situation could be seen in the latter way but stated that the prosperity of the business affected not only Mr Lee and his family but Mr Kim and his family. Mr Kim said that he genuinely believed that the company needed Mr Lee to operate most effectively. In response to the Tribunal’s query, Mr Kim said that if Mr Lee was not successful in obtaining a visa, then he really did not know what would happen with the business.  He said he would try to operate it on his own for as long as he could but he felt it would be very difficult to sustain it under those circumstances.

14. The Tribunal then took evidence from the nominee, Mr Jin Heon Lee. Mr Lee gave his evidence without having heard the evidence given by Mr Kim. He confirmed that he met Mr Kim in 2006 and that they had been close friends for the past 6 or 7 years. Mr Lee told the Tribunal that he originally came to Australia as the holder of a working holiday visa, then studied automotive technology as the holder of a student visa. Prior to coming to Australia, he worked as a tiler in Korea for approximately 3 years.

15. Mr Lee said that his wife set up the applicant company in Australia in May or June 2015. This came after a period during which he was in talks with a different company in Australia that was willing to sponsor him for a subclass 457 visa but its application to be approved as a standard business sponsor was rejected. He and his wife wanted to stay in Australia if they could, so she established the company in her name. Their intention was to establish the Australian company and run it successfully so that it would be in a position to sponsor and nominate them for subclass 457 visas. The advice that they received from a migration agent that they consulted in this period is that this was perfectly legal and acceptable for the purposes of Australian immigration law. However, in August 2015, they had to go back to Korea for family reasons. They asked Mr Kim to take over the business. Mr Lee said that they had always wanted to work with Mr Kim anyway. Mr Kim bought the existing stock within the business and became a director alongside Mrs Lee. No money changed hands besides what Mr Kim paid for the existing stock.

16. Mr Lee said that when he and his wife and their child returned to Korea in or around mid-2015, they were unclear about whether they could or would come back to Australia.  However, they found it very difficult to adjust to being back in Korea Mr Lee said it was particularly difficult for Mrs Lee as she had a stressful relationship with his parents, and ended up on medication. Mr Lee said that while they were back in Korea, he was in regular contact with Mr Kim. Mr Lee then got advice from a migration agent, who told him that he could legitimately be sponsored by the applicant company. He broached this idea with Mr Kim and they discussed it over a 2 week period or so before they agreed that the company would sponsor Mr Lee.

17. The Tribunal queried why, if Mr and Mrs Lee believed that they were probably returning to Korea for good in mid-2015, they did not sell the business to Mr Kim and have Mrs Lee cease being a director. Mr Lee said that all he could say is what he was thinking at the time, when they left Australia. It was a very tough time and they genuinely thought that they were most likely leaving for good. 

18. The Tribunal raised with Mr Lee the issue of whether the present arrangement (whereby Mr Kim had become a director of the company) was designed to make things look less like a self-sponsorship arrangement. Mr Lee said that at the time he and Mrs Lee established the company, they were aware that self-sponsorship was no longer allowed by the Department. However, advice from a minority of migration agents whom he consulted suggested it was still OK for him to set up a business that, if successful, could sponsor and nominate him. He wanted to believe this and focussed on it. In response to the Tribunal’s query, Mr Lee said that he and his family had now been back in Australia for approximately 2 years. They did not have permission to work on their bridging visas and had supported themselves with the proceeds of the sale of Mr Lee’s small business in Korea. They also received some support from Mrs Lee’s younger brother, who was an Australian permanent resident, and her older sister, who had a permanent residency application pending.

19. In response to the Tribunal’s query, Mr Lee said that he had not received any financial support from or through the applicant company. Mr Kim had personally advanced him funds at times, to get by, but that was because he was a good friend and could see that Mr Lee was struggling. Mr Lee acknowledged that there had been a decrease in the turnover of the business due to having fewer staff, which limited the business’ ability to take on big projects. He said that he and Mr Kim found this very frustrating but that they were both confident that they could turn this around if he were able to resume work within the business. Mr Lee added that he had had problems with unethical employers in the past, but he had complete trust in Mr Kim and vice versa.

1. At the conclusion of the hearing, Mr Kim undertook to provide additional material to the Tribunal via his agent.

2. On 12 May 2018, the Tribunal received the following:

   ·further legal submissions from the applicant’s agent;

   ·BAS payment slips and statements for the company for period 1 July 2017 to 31 March 2018;

   ·invoices from subcontractors to the applicant, being PS Tiles Pty Ltd (19 April 2018), Eye & Joy Pty Ltd (19 April 2018) and Hong Hyun Kim (17 April 2018);

   ·position description for nominated position;

   ·employment contract offer from the applicant to the nominee, dated 28 February 2016; and

   ·ANZSCO occupational description for a Wall & Floor Tiler (Unit Group 3334).

3. In her legal submission, the applicant’s agent made the following points (in summary):

   ·Mr Kim instructed that the company had established a good reputation in its industry in the approximately 3 years since its incorporation and hence had been requested by many companies to undertake tiling work;

   ·however, due to a shortage of qualified tilers within the company, Mr Kim had had to allocate a lot of work to sub-contractors (proof of which was provided in the form of a sample of invoices from those sub-contractors);

   ·Mr Kim instructs that his company’s revenue has in fact continuously increased over the period and that for the stable operation of the business, he needed a full-time Tiler. To date, this had been prevented by the shortage of highly skilled Floor and Wall Tilers. Mr Kim felt that the delegate’s decision that the business had no genuine need for a Floor and Wall Tiler was biased, unjust and unfair, and appeared to be based just on the fact that it was a relatively small business;

   ·Mr Kim further instructed that he had complied with all obligations to the ATO and simply wanted to now hire another full-time Tiler. It was an added bonus that they would be able to communicate in Korean, as this would allow them to operate more efficiently. It was further noted that at the time the nomination was made, no labour market testing was required due to the international agreement between Korea and Australia; and

   ·finally, it was noted that the applicant company had successfully applied again to be approved as a standard business sponsor, indicating that the Department considered it capable and eligible to employ foreign workers.

4. 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

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

The nomination must comply with the prescribed process

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.

2. 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 Wall and Floor Tiler) and thus meets r.2.73(1A)(a);

• the applicant identified the nominee, Mr Jin Heon Lee, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);

• the nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);

• the applicant identified the nominee, Mr Jin Heon Lee, in the nomination, thus meeting r.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 333411), thus meeting r.2.72(4).

1. The Tribunal is therefore satisfied that the requirements of r.2.72(3) are met.

Nominator is a standard business sponsor or party to a work agreement

1. 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.

2. The applicant has provided information, which is confirmed by the Department’s records, that the applicant has again been approved as an approved standard business sponsor.  The current approval ceases on 17 November 2022.

3. Accordingly, the Tribunal finds that the requirements of r.2.72(4) are met.

Identification of the nominee

1. 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.

2. As noted above, the Tribunal is satisfied that the applicant identified the nominee Mr Jin Heon Lee as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.

3. Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.

Requirements for existing subclass 457 visa holders

1. 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 the relevant written 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: r.2.72(10)(g).

2. As the Department’s records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.

Information about the nominated occupation

1. 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 written 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.

2. The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Wall and Floor Tiler (ANZSCO code 333411) and specified that the location at which the occupation was to be carried out was in Kensington in the state of Victoria, postcode 3031.

3. Accordingly, the Tribunal finds that the requirements of r.2.72(8A) are met.

Certification relating to conduct under s.245AR(1)

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.

2. The online application form on the Department’s file indicates that Mr Kim certified these matters as part of completing that application.

3. For these reasons, the Tribunal finds that the requirements of r.2.72(8B) are met.

No adverse information known to Immigration

1. 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.

2. Having reviewed the Department’s file and its electronic records, 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.

3. Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.

Specified occupation

1. 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 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances, this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b). The Tribunal is satisfied that this is not the case here.

2. In addition, as raised at the call over, since the nomination application was lodged on 4 February 2016 and refused on 15 July 2016, new occupational lists, including some exclusionary caveats, have been introduced in relation to the occupations that can be approved for the purposes of r.2.72(10)(aa). These were initially introduced in written instrument IMMI 16/059, which took effect on 18 April 2017. As of 1 July 2017, IMMI 16/059 was superseded by IMMI 17/060, which applies to this nomination. IMMI 17/060 includes the occupation of Wall and Floor Tiler on the Medium and Long Term Strategic Occupations List of that instrument, and is not subject to any exclusionary notes (also known as caveats).

3. The Tribunal is satisfied that having regard to the position description provided by the applicant, that the tasks largely correspond to those listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary occupational description for a Wall and Floor Tiler.

4. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met.

Terms and conditions of employment

1. 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.

2. 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.

3. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).

4. 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 (currently $250,000): r.2.72(10)(AB).

5. Based on the evidence before it, the Tribunal finds that the nominee’s proposed annual earnings consist of a base salary of $64,000 plus superannuation as per the letter of employment provided to the Department in February 2016. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied 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.

6. The Tribunal is satisfied from the documentary evidence provided by Mr Kim and the applicant’s agent on behalf of the applicant that there is no Australian citizen or permanent resident performing equivalent work at the same location.  Although Mr Kim has indicated he works as a Tiler within the business, he is also a director of the business, and thus the Tribunal does not consider that he is performing equivalent work to the nominee (acknowledging that much of Mr Kim’s work is as a Tiler).

7. Accordingly, 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. 

8. Having regard to IMMI 09/113, the Tribunal notes that a search of the Fair Work Australia website indicates that the nominated occupation comes under the Building & Construction General Onsite Award 2010, and that the weekly pay rate (for a non-trainee and for a non-leading hand) is approximately $878 per week, or $45,656 per year:

9. The Tribunal has also had regard to 'relevant information' in IMMI 09/113 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.

10. The Tribunal has consulted a range of sources of information, including:

• the Government’s Job Outlook website (accessed 5 March 2018) which indicates that the average weekly earnings before tax for Wall and Floor Tilers are $1,000 before tax (or $52,000 annually) (data stated to be based on an Australian Bureau of Statistics Characteristics of Employment Survey, August 2015): Payscale website ( report (accessed 5 March 2018) provides a salary range for a Tiler in Australia, of $37,804 to $93,636, with the median salary being $26.17 per hour (or approximately $51,711 per year): for various Wall and Floor Tiler positions in Melbourne listed on Seek.com.au and gumtree.com.au as at 5 March 2018 where a salary range or hourly rate is given:

  oWaterproofer/Tiler, Melbourne, salary range $80,000 to $89,999 (advertised 1 March 2018);

  oTiler, Melbourne western suburbs, $30 to $39.99 per hour (or $59,280 to $79,020 per year), advertised 24 February 2018; and

  oWall and Floor Tiler (sub contractor, experienced), metropolitan Melbourne, $300 to $350 per day (annualising to approximately $72,000 to $84,000, assuming a 5 day week for 48 weeks per year).

1. The Tribunal is satisfied from the most recent salary survey information from and advertisements from seek.com.au that the salary package attached to the nominated position is within the range of salaries for the occupation, although it notes that the Job Outlook and relevant Award rates indicate a lower salary than the TSMIT. However, the Job Outlook figure is only just short of the TSMIT figure, the Tribunal notes that the data used to formulate the Job Outlook figure is now approximately 3 years out of date, so may not remain entirely accurate. Similarly, the Tribunal considers that the Award rate would represent the lower end of the available market salary range.

2. Accordingly, and on balance, the Tribunal is satisfied that the nominee’s salary is no less favourable than those that would be offered to the relevant Australian equivalent.

3. The Tribunal is further satisfied that the original contract of employment provided to the Department for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).

4. 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.

5. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(c) are met.

Base rate of pay

1. 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).

2. 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.

3. Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB). As the Tribunal has found above, this is not the case here.

4. For the reasons set out above in paragraphs 70 and 71 above, the Tribunal is satisfied that the base rate of pay under the terms and conditions of employment that would be provided to an Australian citizen or permanent resident will be greater than the TSMIT.

5. For these reasons, the Tribunal finds that the requirements of r.2.72(10)(cc) are met.

Certification under r.2.72(10)(e)

1. 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 17/060;

• 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 written 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 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 IMMI 17/060.

1. From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.

2. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(e) are met.

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

2. As noted above, the delegate found that the position of Wall and Floor Tiler was not genuine as she was not satisfied that the scope, structure and operations of the applicant’s business warranted another full-time Wall and Floor Tiler, particularly in the absence of verified evidence that the applicant’s workload was increasing as claimed. At that time, no financial statements were provided for the applicant, but BAS for the period 1 October 2015 to 31 December 2015 showed total sales of $91,256.

1. From the evidence provided by the applicant to the Department and Tribunal, the Tribunal is satisfied that the applicant company operates a construction-related business focussing almost exclusively on wall and floor tiling based in suburban Melbourne which presently has 1 employee (not including the nominee) being one of its directors, Mr Kim. In addition, the applicant employs subcontractors as required. Mr Kim has indicated that his own workload, as a director of the business as well as a Tiler, is onerous and that he wishes to employ the nominee, an experienced Wall and Floor Tiler with whom he has previously worked, to assist him and to reduce his reliance on sub-contractors but take on more work.

2. In support of the business’ current financial position, Mr Kim and his agent provided financial statements for the 2015/16 financial year (which also include the financial position for the applicant for the previous financial year). These indicate that the total trading income for 2016/17 was $181,796 (compared with $311,488 in 2015/16). No payments were made to subcontractors in 2016/17 compared to payments of $116,880 in 2015/16.  Despite the agent’s assertion that the income of the business remained ‘stable’, it is clear to the Tribunal that it has reasonably significantly decreased in the last complete financial year for which financial statements are available. Mr Lee and Mr Kim conceded as much at hearing, and indicated that this was because Mr Kim was doing most of the tiling work himself and had significantly reduced the number of sub-contractors used from previous levels.

3. In light of the evidence given by Mr Lee and Mr Kim at the hearing, which in summary indicates that the applicant company was established by Mr and Mrs Lee in 2015, and that Mr Kim became involved only after they had to leave Australia, and that he did not pay to acquire a 50% shareholding in the business, the Tribunal considers that this raises a genuine question of whether the need for the nominated position is genuine, or whether this is essentially an arrangement to secure a migration outcome for Mr Lee and his family.

4. The Tribunal has had regard to the Department’s policy (as set in its Procedures Advice Manual, or PAM3, as at 17 March 2018, the last version prior to the abolition of the subclass 457 visa program and associated nomination program on 18 March 2018), which provides the following guidance on this issue:

   4.6.11. Genuine position

   4.6.11.1. Overview

   Regulation 2.72(10)(f) provides that the Minister must be satisfied that the position associated with the nominated occupation is genuine.

   This is considered an important regulatory criterion in terms of ensuring that the intention of the subclass 457 program is met – that is, it is used to address temporary skill shortages, for approved occupations outlined in the relevant legislative instrument, in circumstances where an Australian worker cannot be sourced. It was introduced to provide the Department with the ability to refuse a nomination if there were indicators that a semi-skilled position had been ‘dressed up’ to appear more skilled in order to facilitate a visa for a person.

   To avoid doubt, the requirement is not that the position itself must be genuine or ‘needed’, rather it is that the position associated with the nominated occupation must be genuine. That is, the position must exist and also be what it purports to be.

   For example, if a fundraising business is seeking to employ a person to dress in an animal costume and collect donations from the general public and has lodged a nomination application for the occupation of Marketing Specialist (ANZSCO 225113), in assessing the nomination against regulation 2.27(10)(f), whether the business has a genuine need for such an employee is irrelevant. For this criterion to be satisfied, the officer would need to be satisfied that a position exists that requires the occupant to undertake the duties of a Marketing Specialist (as described in ANZSCO) - which would appear unlikely in this case.

   4.6.11.2. When can a decision be met on the basis of certification in the nomination application form

   Officers may generally consider this requirement met on the basis of the certifications provided by the sponsor in their application in accordance with regulation 2.72(10)(e) unless there are doubts as to the veracity of these certifications or the intent behind the nomination.

   Note: Regulation 2.72(10)(d) covers certifications for nominations lodged before 1 July 2010.

   4.6.11.3. When is further assessment appropriate under policy

   Further assessment may be appropriate in the three scenarios outlined immediately below; this is because in these scenarios, the nominated position may not actually exist, or while existing, may not be what has been presented in the nomination:

   ·there is information that suggests that the nominated position may have been created to secure a migration outcome for the nominee and/or any of their family members – refer to Position created to secure a migration outcome or

   ·the information provided in the nomination application suggests that the tasks of the position do not align, or at least do not substantially align, with the tasks of the nominated occupation as described in the ANZSCO – refer to Tasks of the position do not align with nominated occupation or

   ·the position does not appear to be consistent with the nature of the business – refer to Position is not consistent with the nature of the business. 

   Important:

   The sections referenced above provide more information on when these scenarios may apply under policy.

   If after further investigation officers do have concerns that regulation 2.72(10)(f) may not be met, the guidelines outlined in Addressing concerns about genuine position should be considered.

   Special arrangements are in place for assessing regulation 2.72(10)(f) for nomination applications lodged by accredited sponsors which are eligible for streamlined processing – refer to section 4.9.3. Assessment of genuine position criterion – Accredited sponsors.

   4.6.11.4. Position created to secure a migration outcome

   The subclass 457 program is designed to enable employers to address labour shortages by bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to “create a position” – for example, in order to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available.

   Eight examples of factors that might indicate that facilitating the entry or stay of the nominee is the primary objective of the application are:

   ·The nominee is a relative or personal associate of an officer of the sponsoring business. Officers should check departmental records for details of the sponsorship application and ascertain whether there is a direct or indirect relationship between the nominee and any owner/officer of the sponsoring business.

   ·The nominee is a director or owner of the sponsoring business. If the business is a company and an ASIC historical extract has not been provided the business should be requested to provide one if necessary to ascertain whether the nominee is an owner or director or shareholder.

   ·The nominee is currently in Australia and already working for the sponsor and/or the nominee’s immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa.

   ·The business has been in existence for a very short period of time (for example, the business was created in the last 3-6 months and appears to have just been “created” for the purpose of migration).

   ·The proposed salary is significantly lower or significantly higher than industry standards.

   ·The business has a relatively small turnover that could indicate that at the nominated salary provided, it would be difficult to support the number of proposed employees at the business.

   ·The business does not employ any or employs very few Australian employees.

   ·There is evidence that the business may have received, or will receive, payment from the nominee for lodging the nomination. In this case, refer the case to 457 Program Management – for more information refer to section 4.5.6. Certification regarding paying for visa sponsorship

   Note: The above policy settings do not prevent individuals from sponsoring themselves (that is, “self-sponsorship”) – however, in such cases there needs to be another reason for the position being created.

   It cannot just be to facilitate a long-term stay in Australia and/or create a pathway to permanent migration. Such arrangements can be approved under policy if there will be a genuine economic benefit resulting to Australia (for example, an innovative IT entrepreneur intends to move their business to Australia, which will support growth in the technology sector and create jobs for Australians).

   Refer to Addressing concerns about genuine position for more general advice regarding assessments under regulation 2.72(10)(f).

   …

   4.6.11.7. Addressing concerns about genuine position

   Further guidance

   To facilitate consistency in decision-making and ensure the policy settings are being implemented as intended, it is important that officers consider the additional guidance provided in the following paragraphs when assessing a nomination application against regulation 2.72(10)(f), taking into account information provided in the individual nomination application, as well as any relevant supporting documentation.

   Acknowledging that regulation 2.72(10)(f) is subjective in nature, under policy, officers should consider the following five factors, which add weight to an assessment that the position associated with the nominated occupation is genuine:

   ·There is evidence relating to a previous occupant employed in the position – for example, there was a previous 457 holder in the position or the business has indicated that an Australian was previously holding this position but has since left.

   ·There is evidence that the position has been advertised and filled through a transparent recruitment process.

   ·The position is a highly skilled position with specific tasks outlined in ANZSCO (as opposed to a generalist ill-defined role).

   ·The position fits clearly within the scope of the activities of the business.

   ·The business has provided evidence that demonstrates that new positions are required.

   Factors supporting ‘genuine position’

   Evidence that can be useful to support such an assessment includes:

   ·a breakdown of the organisational structure (organisation chart) to indicate how the position fits into the business activity

   ·an outline of the goods or services produced by the business and how the position and its associated duties contributes to maintaining or enhancing the volume and/or quality of these outputs (this may include detailed and quantifiable plans for future expansion)

   ·evidence that the position has existed and been previously occupied, but has become vacant through attrition or is currently occupied by a temporary resident

   ·increase in business activity over previous months or years (for example, new contracts won, increased demand) requiring persons in the nominated occupation

   ·hours of operation and/or growth in customer numbers which explain why additional staffing may be required – that is, to meet increased demand and ensure coverage across the working week

   ·evidence as to what percentage of the sponsor’s workforce are Australian citizens or permanent residents and

   ·overtime work, or increases in overtime work, for employees currently in the nominated occupation.

   Note:

   Additional advice for clients and agents on useful evidence that can be provided to support this criterion is on the Department’s website at Document Checklist for Nominations.

   If possible, independently verifiable evidence should be provided (for example, copies of contracts, purchase orders from third parties) as this will be given the greatest weight by visa decision-makers.

   Under policy, ‘genuineness submissions’ containing information specific to the business that are written by the sponsoring business should be given reasonable weight.

   “Genuineness submissions” that contain generic template information (for example, use a template provided by an outsourced company) or that rely heavily on speculative or non-specific reports or media articles should be given little weight. Such information is usually not tailored to individual companies and hence may not accurately reflect the current situation in the business.

   Factors not supporting ‘genuine position’

   Under policy, eleven factors that might add weight to an assessment that the position associated with the nominated occupation is not genuine are:

   ·There is evidence that the industry in which the nominating employer operates is in decline.

   ·According to a reputable source (for example, joboutlook.gov.au) there is an average or above-average rate of unemployment in the nominated occupation/industry.

   ·The nominating employer has taken one or more of the following four actions in regard to employees in the nominated occupation or similar occupations:

   oretrenchment in the previous 12 months

   oreduction of hours worked during the previous 12 months

   oreduction in pay and conditions within the previous 12 months and/or

   oemployment of a temporary visa holder on conditions less favourable than those for Australian employees.

   ·The sponsor is a small business employing multiple 457 holders or other temporary foreign workers in similar positions and/or the sponsor has no, or very few, Australian employees.

   ·The nominated positions are managerial in nature and the proposed salary is at the lower end of the market salary rate range for such a position.

   ·The nominated occupation is one that:

   othe ANZSCO dictionary lists only very broad, generic tasks (for example, Marketing Specialist, Program or Project Administrator, Specialist Manager NEC); and/or

   othe Department has previously identified a trend of sponsors using the occupation in an attempt to utilise the subclass 457 program inappropriately – that is, accommodate semi-skilled workers or undermine other visa programs.

   ·The sponsor is an overseas business and the sponsor seeks to employ the visa holder through an associated entity in Australia.

   ·The sponsor is an overseas business that has been approved to establish a branch of the business in Australia and the positions nominated are not such that the nominee would be assisting in establishing the Australian business or be responsible for a substantial part of the operations of the business in Australia.

   ·There appears to be inconsistent information provided regarding the tasks that the nominee will perform and/or these do not appear to align with those outlined in ANZSCO.

   ·The list of tasks provided in the application form has been substantially copied from the ANZSCO dictionary into the application form or job description.

   ·The sponsor seeks to nominate a General Manager and:

   ois a company involved in trading activity (imports/exports) with no other employees except for its directors or

   ois a business whose main source of revenue is rental income from domestic properties it owns (for example, renting rooms to overseas students).

   Note: Under policy, nominations lodged for certain occupations should also be carefully scrutinised to determine whether the position associated with the nominated occupation is not genuine or might be used to accommodate semi-skilled workers, or to circumvent/avoid having to use other visa programs. For advice on particular occupations, refer to section 4.8. Advice on certain nominated occupations*.

   Important:

   This does not mean that nominations in such circumstances cannot be approved or are not acceptable within the subclass 457 program. Nominations that meet the regulatory criteria must be approved.

   …

   [*Wall and Floor Tilers are not listed in section 4.8 – Tribunal note]

5. When exercising a discretionary power the Tribunal should have regard to policy, as a relevant consideration. However, whether exercising a discretionary or non-discretionary power, policy is not binding on the Tribunal.[1] In this case, the Tribunal considers that it is both relevant and appropriate to have regard to the above policy in assessing the issue of ‘genuine position’ for the purposes of r.2.72(10)(f).

   [1] See, e.g., Qiao v MIAC [2008] FMCA 380 (Orchiston FM, 28 March 2008) at [29] and Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (Davies J, 12 December 1995).

6. In this case, there are a number of factors which do point to the nominated position not being genuine, in the sense that the appointment of Mr Kim, a friend of Mr Lee’s, as a director of the company, and its subsequent nomination of Mr Lee, do suggest that this has been done to secure Mr and Mrs Lee’s desired outcome of ongoing residence in Australia. The current scenario appears to feature a number of the factors of concern identified in the Departmental policy extracted above, such as:

   ·the fact that the nominee, Mr Lee, is a personal friend and associate of Mr Kim, who lodged the application on behalf of the company that was originally set up by Mr Lee and his wife;

   ·the fact that the relationship between Mr and Mrs Lee is arguably not at ‘arm’s length’, given Mr Kim did not purchase his 50% shareholding in the business and that the other remaining director besides him is Mr Lee’s wife;

   ·the fact that Mr Lee has indicated that he hoped to remain (or to return) to Australia with his family and set up the company for this purpose;

   ·the fact that the business currently has a relatively low turnover and it may be difficult for it to support the salaries of both Mr Kim and Mr Lee;

   ·the fact the business does not employ any Australians – aside from Mr Kim himself, who is a director but pays himself a salary of $60,000 per year (noting that is is unclear what immigration status its sub-contractors have or have had, such that some may have been Australian);

   ·the fact that the position has not been advertised or filled through a transparent recruiting process;

   ·the fact that little documentation has been provided to substantiate the claim that the business needs the nominated position in order to able to expand, particularly where in fact it has decreased its use of sub-contractors in the last complete financial year; and

   ·the fact that a comparison between the position description provided by the applicant’s agent and the ANZSCO occupational description indicates that the former substantially replicates the latter.

7. As against the above, there are also factors mentioned in Departmental policy which support a finding of genuineness in the present case, including:

   ·the fact that the position is not a generalist, ill-defined role but a specific vocational occupation;

   ·there was a previous occupant in the nominated position, being Mr Lee (the nominee) but also another part time worker;

   ·the nominated position does clearly fit within the scope of the business’ activities; and

   ·there is no evidence that the industry in which the nominating employer operates is in decline; in fact, the opposite is true as the most recent Department of Jobs and Small Business Skills Shortages List for Australia lists the nominated occupation as being in shortage (list issued 28 March 2018, based on research undertaken to 31 December 2017).

1. Moreover, although the Tribunal has found that the applicant’s position description for the nominated position largely replicates the ANZSCO occupational description for a Wall and Floor Tiler, the Tribunal does not consider this to be highly indicative of fabrication or lack of genuineness when taken in the context of a highly vocational, practical nominated occupation, where it could be expected that most nominated occupations would in fact carry out the majority of duties listed in ANZSCO for that occupation.

2. Overall, then, the Tribunal considers that despite the nominated position having a number of the Departmental indicia for a non-genuine position, it also has features that point to it being a genuine position within the business. The Tribunal gives weight to the recognition in the Departmental policy that ‘the above policy settings do not prevent individuals from sponsoring themselves (that is, ‘self-sponsorship’) – however, in such cases there needs to be another reason for the position being created.’  Ultimately, the Tribunal concludes that in this case, the position is genuinely needed within the business if it is to continue operations and expand them, notwithstanding the fact that it would also deliver a favourable migration outcome to the nominee and his family.

3. For these reasons, the Tribunal finds that the requirements of r.2.72(10)(f) are met.

Employment under contract

1. 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.

2. The Tribunal is satisfied that the applicant provided an employment contract offer to the nominee to the Department in February 2016 indicating that the nominee’s salary was $64,000 plus superannuation. At hearing, it was confirmed that this contract remains current.

3. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(h) are met.

Work agreements

1. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.

2. As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.

Labour Market Testing

1. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

2. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:

   ·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

   ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

3. 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.

4. The Tribunal notes that IMMI 17/109 (the relevant instrument currently in force) provides that the Korea-Australia Free Trade is specified for the purposes of an exemption from the labour market testing requirement. The effect of this is that, if a nominee is a citizen, permanent resident or national of the Republic of Korea, labour market testing is not a nomination requirement.

5. The Tribunal is satisfied that the nominee Mr Lee is a national of the Republic of Korea, from the biodata information he provided to the Department and the Tribunal.

6. Given this finding, the Tribunal finds that the labour market testing requirements in s.140GBA are not applicable.

   Conclusion

7. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Alison Mercer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

(1)This regulation applies to a person who is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)The Minister is satisfied that the person is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(7A)In addition to subregulation (6):

(a)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

(b)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

(b)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a standard business sponsor;

the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a party to a work agreement;

the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(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.