POMMONGKUT PTY LTD (Migration)

POMMONGKUT PTY LTD (Migration) [2019] AATA 3924 (2 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pommongkut Pty Ltd
CASE NUMBER:  1904300
HOME AFFAIRS REFERENCE(S):           BCC2019/119502
MEMBER:John Cipolla
DATE:  2 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 02 August 2019 at 3:38pm

CATCHWORDS
MIGRATION – nomination refusal– genuine position – genuine need for the nominator to employ a paid employee – nominated tasks corresponds to the tasks of an occupation specified by the Minister –decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 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 18 February 2019 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 21 January 2019. A nomination of an occupation for a Temporary Skill Shortage (TSS) 482 visa is made under s.140GB (1)(b) of the Act and r.2.73 of the Regulations. These criteria are extracted in the attachment to this decision. For nomination applications made from 12 August 2018, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72 (8) because the delegate was not satisfied that the nominated occupation corresponded to an occupation specified by the Minister in an instrument in writing. The delegate noted that the nominated occupation was Massage Therapist and that this position as listed in the relevant instrument, IMMI 18/048, was the subject of a caveat which specified that the position must operate in a therapeutic setting. The delegate formed the view that this was not the case and that the business provided massage for relaxation.
The applicant appeared before the Tribunal on 25 July 2019. The Tribunal conducted a combined hearing with the nominee which pertained to the cancellation of the nominee’s visa on the basis that the nominee failed to comply with condition 8107 of their Subclass 457 visa. The Tribunal received oral evidence from the Director of the nominating business Mr Somsakui Pommongkut and from the nominee, Pakkanun Ittipol-Olarn.
After reviewing all of the evidence before it, that provided to the Department and to the Tribunal at review, the Tribunal has decided to approve the nomination for the reasons that follow.
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 r.2.72: s.140GB (2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The evidence before the Tribunal indicates that the relevant training contribution charge has been paid.
General
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
For the purposes of this review, the Tribunal has had regard to the information and documents provided with this application and in Tribunal case file 1904300 and the electronic documents from the Department case file 5345295, and the evidence obtained from the Director of the business and evidence and submissions made at the hearing on 25 July 2019 along with post hearing submission.
2.73 Application requirements
Regulation 2.73 sets out the process for nomination for a Subclass 482 Temporary Skill Shortage visa. The regulation applies in relation to a person who is nominating a proposed occupation under section 140GB(1)(b) of the act in relation to any of the following (the nominee):
a.a holder of a subclass 457 (temporary work (skilled)) visa;
b.a holder of a subclass 482 temporary skill shortage visa;
c.an applicant or a proposed applicant for a subclass 482 temporary skill shortage visa.
For the purposes of 2.73 (2), section 140GB (3) of the Act applies so that the applicant may nominate a proposed occupation in accordance with the process set out in the regulation.
Regulation 2.73 (3) requires that the applicant has made the application using the internet and the form specified by the Minister in a legislative instrument IMMI 18/018, and the Tribunal is satisfied that 2.73 (3) and (4) are met. The applicant has also paid the prescribed fee and 2.72 (5) is met.
The Tribunal has had regard to information on the Department’s file and is further satisfied that the provisions of 2.73 (5A) and (6) are also met. The nomination does not apply in the Labour Agreement stream and the occupation is for a Short-term skilled occupation in the Short-term stream.
The Tribunal is satisfied the requirements in 2.72(3) are met.
Regulation 2.72
Adverse Information
Regulation 2.72 (4) requires that 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.
Having regard to the facts, matters and circumstances available to the Tribunal, the Tribunal is satisfied that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.
For these reasons, the requirements in 2.72 (4) are met.
Standard Business Sponsor
Regulation 2.72 (5) requires that the Minister is satisfied that:
a)if the occupation is nominated for a subclass 482 (temporary skill shortage) visa in the short-term stream or medium-term stream - the person is a standard business sponsor; or
b)if the occupation as nominated for a subclass 482 (temporary skill shortage) visa in the labour agreement stream the person is a party to a work agreement (other than a Minister) . Also:
Regulation 2.72(5A) requires that the Minister is satisfied any debt due by the person as mentioned in section 140ZO of the act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
The Tribunal finds that the applicant is a standard business sponsor pursuant to a valid sponsorship agreement for the period from 14 February 2019 to 14 February 2024, and that the application is for the Short-term or medium-term stream for the nominee.
As noted the Tribunal is further satisfied it is not aware of any debt due by the applicant for the recovery of any training contribution charge and late payment penalty.
The requirements of 2.72 (5) and 2.72 (5A) are met.
Information to be provided with the nomination
2.72 (6) sets out that if the nominee holds a Subclass 457 (temporary work skilled) visa or a Subclass 482 (Temporary Skill Shortage) visa, the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in cl. 457. 321 of Schedule 2 (as in force before 18 March 2018). The evidence before the Tribunal indicates that the nominee has been in the employment of the nominating business since 7 April 2014.
The nominee held a Subclass 457 visa which was granted on 26 June 2018 valid until 26 June 2020. On 22 May 2019 the Department cancelled the nominees 457 visa on the basis that the nominee had not complied with condition 8107 attached to that visa. The nominee sought merits review of the Departmental decision and on 2 August 2019 the Tribunal set the cancellation decision aside.
In the application, the Tribunal is satisfied that the applicant has listed the nominee as the only holder of a Subclass 457 visa, and who is currently employed by the applicant.
The Tribunal finds the requirements of 2.72 (6) are met.
Nominated Occupation
2.72 (8) of the regulation requires that the Minister is satisfied:
a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
I.if the occupation is nominated for a subclass 482 (temporary skill shortage) visa in the short term stream or medium term stream-instrument made under subregulation (9) in force at the time the nomination is made; or
II.if the occupation is nominated for a subclass 482 (temporary skill shortage) visa in the labour agreement stream - the work agreement; and
b) The occupation applies to the nominee in accordance with the instrument or work agreement.
The nomination has nominated the nominee in the application for the occupation of Massage Therapist. The correct job description as per ANZSCO classification is “Massage Therapists”, unit group 4116.
The Tribunal in reviewing the application finds that the nominated occupation is for a Subclass 482 (Temporary Skill Shortage) visa in the short term skilled occupation stream. The Tribunal is satisfied that the occupation of Massage Therapist applies to the nominee as required by the relevant legislative instrument (see below).
The provisions of 2.72 (8) are met.
Regulation 2.72 (9) specifies that the Minister may, by legislative instrument, specify occupations and, for each occupation:
a.whether the occupation is:
i.a short-term skilled occupation; or
ii.a medium and long-term strategic skills occupation and
b.either:
i.the 6-digit ANZSCO code for the occupation; or
ii.if there is no 6-digit ANZSCO code for the occupation - a 6-digit code for the occupation; and
c.if there is no 6-digit ANZSCO code for the occupation - tasks, qualifications and experience for the occupation; and
d.any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
i.the person who nominated the occupation;
ii.the nominee;
iii.the occupation;
iv.the position in which the nominee is to work;
v.the circumstances in which the occupation is undertaken;
vi.the circumstances in which the nominee is to be employed in the position.
The relevant legislative instrument is IMMI 18/048 (specification of occupations-subclass 482 visa). Having regard to the nomination application as contained in the Department’s file, and the evidence provided at the hearing by the nominee and the applicant, setting out the circumstances of the position, description of the occupation and the circumstances in which the occupation is undertaken, the Tribunal finds it is satisfied that the nominated occupation fits the description of Massage Therapist, ANZSCO 411611, as contained in Part 2-specification of occupations-and as set out in the instrument.
The application is for employment for a proposed period of up to one year, being a short-term skilled occupation within the meaning of the sub- regulation.
The Tribunal finds that, having regard to the information supplied with the application and at hearing, the requirements of 2.72 (9) are met.
Is the position genuine?
The evidence that has been provided to the Department and to the Tribunal at review is sufficient to satisfy the Tribunal that the position of Massage Therapist in the business is a genuine position. The Tribunal was given, with the consent of a number of clients of the business, their medical histories which confirmed that the business offers therapeutic massage. The evidence provided by the applicant and the nominee confirmed that the business provided therapeutic massage to clients. The applicant advised that every client attending the business is required to complete a medical history form which collates information about the problem requiring treatment and a copy of the pro forma form was provided at review. The website accessed by the Tribunal clearly indicated that the massage therapy available to clients was therapeutic in nature and a range of massage modalities were available to treat problems. The current financial statements for the business also provided evidence that corroborated the turnover of the business and the applicant made a clear business case as to why he was in need of the nominee to work in the business to alleviate the pressures on him and to further grow the business.
The work of Massage Therapists according to ANZSCO typically includes tasks of massaging the soft tissues of the body, such as muscles, tendons and ligaments, to assist healing; utilising a range of massage techniques to enhance sports performance and prevent injury; administering treatments to promote relaxation, improve circulation and relieve muscle tension; assessing and treating specific soft tissue dysfunction and providing rehabilitation advice; employing other techniques, such as acupressure or Shiatsu, and complementary aids, such as infra-red lamps, wet compresses, ice, essential oils and herbal and mineral therapies, to assist recovery and assessing client's physical condition and case history and advising on stretching exercises and relaxation techniques.
The evidence provided at review and at the review hearing indicated that a Massage Therapist employed in the business adhered to and performed the full gamut of the tasks identified in ANZSCO.
The Tribunal has had regard to the descriptions used in the ANZSCO set out above along with the requisite level of skill commensurate with the qualifications and experience outlined in ANZSCO. The Tribunal is satisfied that the nominee possesses the skills and experience commensurate with the nominated position of Massage Therapist.
In Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091 the Federal Circuit Court of Australia was considering r.2.72 (10)( f) of the regulations and considered the issue as meaning “determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be”. In short, there is no pre-determined test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering what are the tasks and duties associated with the position and described as the occupation for the nomination, and whether the nominee performs those tasks, and the commensurate level of experience of the nominee to perform those tasks.
The Tribunal is satisfied on review that the role is genuine and is in fact what it purports to be, namely the provision of massage services in a therapeutic setting. The Tribunal is further satisfied that the tasks specified in ANZSCO for a Massage Therapist are in fact carried out and performed by the nominee.
The Tribunal finds it is satisfied that on the information available and having heard from the nominee and the applicant/Director that the role is genuine and is what it purports to be and for these reasons, the Tribunal is satisfied the requirements of 2.72 (10)(a) are met.
The Tribunal is further satisfied the position offered to the nominee is a full-time position and the requirement in 2.72 (10) (b) is met.[1]
Additional requirements in relation to short-term stream
[1]
Regulation 2.72 (11) requires that if:
a.the occupation as nominated for a Subclass 482 temporary skill shortage visa in the short-term stream or medium-term stream; and
b.the person is not an overseas business sponsor; and
c.the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
The Minister is satisfied that:
d.the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
e.the person will give the Minister a copy of the contract signed by the employer and the nominee.
On the information available, the Tribunal finds that the nominee is engaged by the applicant as employer under a written contract of employment, a copy of which has been provided. For these reasons, the requirements of 2.72 (11) are met.
Regulation 2.72 (12) applies to an applicant who is an overseas business sponsor. The Tribunal finds in this instance the applicant only conducts business within Australia and is not an overseas business sponsor. For these reasons, the provisions of 2.72 (12) do not apply in this case.
Regulation 2.72 (13) concerns specified legislative instruments which do not apply in this application, and the Tribunal finds the provisions of the sub-regulation do not apply in this case.
Regulation 2.72 (14) provides, inter alia, that if:
a.the occupation as nominated is for a Subclass 482 temporary skill shortage visa in the short stream or medium term stream; and
b.the nominee holds a Subclass 457 Temporary Work Skill visa and
c.the Minister requested the person to provide evidence that the nominee satisfies a language test requirements; the person has provided evidence to the Minister that the nominee satisfies:
d.if the occupation is for a Subclass 482 temporary skill shortage visa in the short stream-any language test requirements specified by the Minister in a legislative instrument that would apply to the nominee if the nominee were an applicant for a subclass 482 temporary skill shortage visa.
The Tribunal finds in this instance that the occupation is for a Subclass 482 Temporary Skill Shortage visa in the short term stream and the nominee holds a Subclass 457 Temporary Work Skill visa valid to 26 June 2020. The Tribunal finds that the Minister has not requested the nominee to provide evidence of a language test and for this reason, the requirement in 2.72 (14) does not apply.
Regulation 2.72 (15) is subject to regulation 2.72 (16) and refers to a finding where the Minister is not satisfied the nominee’s annual earnings will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph.
The Tribunal finds on the information available that the applicant is employed on an annualised salary of $55,000.
By reference to Payscale as an industry guide, and which carries out remuneration surveys generated across the relevant industry, salaries for a Massage Therapist vary in Australia from $39,830 per annum to $95,218 per annum. The median hourly salary for a Massage Therapist according to industry statistics is $25.63 per hour. The Tribunal further finds that this salary is not less than the income threshold specified in a legislative instrument[2] for the purposes of the sub-regulation, as referred to below.
[2] 18/033
Similarly, regulation 2.72 (16) is not applicable in circumstances where the annual market salary rate for the occupation is not less than the temporary skilled migration income threshold (TSMIT) specified by the Minister in a legislative instrument made for the purposes of paragraph (15) (d), and in this instance, the Tribunal finds the provisions of the sub-regulation are met.
Regulation 2.72 (17) specifies the Minister may, by legislative instrument, specify a method for determining the annual market salary rate for a nominated occupation under the Act, or an occupation in relation to which a position as nominated under regulation 5.19. The relevant instrument for the purposes of this application, IMMI 18/033 (specification of income threshold and annual earnings and methodology of annual market salary rate), specifies the applicable income threshold for this application under sub regulation 2.72 (15) (d) is $53,900.

The Tribunal finds therefore that as the nominee’s income is not less than the threshold set out in the legislative instrument for the TSMIT, and verified by annual market survey information referred to above, the provisions of the regulation 2.72 (17) are met.
Regulation 2.72 (18) requires that if the nomination is for a subclass 482 (temporary skill shortage) visa in the short-term stream, the Minister is satisfied that:
a.either:
i.all will employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
ii.it is reasonable to disregard any such information; and
b.if the person is lawfully operating a business in Australia-the person has not engaged in discriminatory recruitment practices.
The Tribunal has had regard to the information provided about the employment conditions of the nominee and finds it is satisfied that the application meets the requirements for the nominee to be employed under circumstances which are not less favourable than those that would apply to an Australian citizen or an Australian permanent resident performing equivalent work at the same location. The evidence is that the nominee is being paid a salary commensurate with the salary paid to an Australian employee within the business working in the position of Massage Therapist.
For these reasons the Tribunal is satisfied the requirements of 2.72 (18) have been met.
Regulation 2.72 (19) refers to a nomination for a Subclass 482 visa in the labour agreement stream. For the reasons outlined, this is not an application in the labour agreement stream and the provisions of the sub-regulation do not apply. The Tribunal further finds that as the nominee is a national of Thailand, and as there is a free trade agreement between Australia and Thailand, LMT can be waived under s140GBA (1)(c) if-“ it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position.”
For nomination applications lodged on or after 12 August 2018, the nomination must be advertised in Australia and in accordance with legislative instrument IMMI 18/036. The requirements are that the advertisement is in English, was published at least twice on a recruitment website with national reach, or in print media or on radio and including details of the job description, title and position, skills and experience required, the sponsor’s name or (as in this instance) the recruitment agency and the intended salary (where the intended earnings are lower than $96,400.
On the information provided by the applicant the Tribunal is satisfied that these requirements have been met.
Application purpose- Facilitating a stay?
The Tribunal has taken evidence from the applicant and the nominee during the review hearing. The Tribunal is satisfied that the application is genuinely made to support the business of the applicant and that the nominee is a suitable candidate who has been performing the role for some time. Evidence pertaining to the applicant’s work indicates a high level of experience and the applicant/Director’s evidence as to the value of the nominee as an employee is strong.
The Tribunal finds that considering the evidence and submissions made at hearing, and considered with the information now available, that the application was not created for the purpose of facilitating the nominee’s stay in Australia, and for the reasons set out above, finds the position to be genuine and the requirements for the application have been met.
Summary
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved. The provisions in the regulation 2.72 are met.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
John Cipolla
Senior 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.

[2019] AATA 3924

2 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction