Probity Investments Pty Ltd (Migration)

Probity Investments Pty Ltd (Migration) [2018] AATA 105 (15 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Probity Investments Pty Ltd
CASE NUMBER:  1616276
DIBP REFERENCE(S):  BCC2016/1675497
MEMBER:Saxon Rice
DATE:15 January 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 15 January 2018 at 12:53pm

CATCHWORDS
Migration – Nomination of an occupation for a Subclass 457 visa – Base rate of pay below the temporary skilled migration income threshold – Applicant failed to provide the requested information during prescribed period – Lost the right to a Hearing
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 359C, 359, 360(3), 363A
Migration Regulations 1994 rr 2.57A, 2.72, 2.73, Schedule 2
CASES
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [2010] FMCA 890

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 Immigration on 23 September 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).
The applicant applied for approval on 9 May 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(10)(cc) or 2.72(10A)(b) because the base rate of pay was below the current temporary skilled migration income threshold and the proposed guaranteed annual earnings were less than the current temporary skilled migration income because they included monetary benefits, namely a bonus or commissions on sales, which are not included in the definition of earnings as per Regulation 2.57A.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
The Tribunal Invitation to Provide Information:
On 18 December 2017[1] the Tribunal invited the applicant under section 359(2) of the Act to provide information that confirmed it met all the criteria in regulation 2.72. That is, the Tribunal invited the applicant to provide updated and current information to demonstrate that the nomination application meets all the criteria in regulation 2.72 of the Regulations at the time of decision in 2017/18. Specifically, the invitation included, amongst other things:
·Information that substantiates the current duties for the position associated with the nominated occupation;
·Information that demonstrates that the base rate of pay and the terms and conditions of employment of the nominee will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location, as required by paragraphs 2.72(10)(c), (cc) and (10AA);
·Information that substantiates that the position associated with the nominated occupation is genuine; and
·Information that demonstrates whether there is a direct employment relationship between the business and the nominee, including a copy of an updated contract.
[1]T1, f.24-29
In addition, this invitation stated that the Tribunal should receive the requested information by 2 January 2018, or within the period allowed and as extended. This letter further informed the applicant that a failure to do so would mean that it would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.[2]
[2]T1, f.24-29
However, the Tribunal did not receive the requested information within the timeframe allowed for this purpose. The applicant did not request an extension of time from the Tribunal in which to do so. As at the date of this decision, no response to the Tribunal’s invitation to provide information has been received.
The Loss of the Right to a Hearing before the Tribunal
The Tribunal notes that its invitation (dated 18 December 2017) was sent to the last relevant (email) address for service provided by the applicant in connection with the application for review. The Tribunal did not receive any ‘out-of-office’ notifications or automated responses to its email.
The Tribunal also observes that, in relation to its invitation under subsection 359(2) of the Act, as the applicant failed to provide the requested information before the time for giving it has passed, subsection 359C(1) applies and the Tribunal may make a decision on the review without taking any further action to obtain the information.
Further, as subsection 359C(1) applies to the applicant, subsection 360(3) states that the applicant is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something it is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.
In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.[3]
[3] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Accordingly, as the applicant failed to provide the requested information within the prescribed period, it has lost his right to appear before the Tribunal to give evidence and present arguments relating to the application for review. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation.
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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
In the present case, the following relevant information was set out in the decision record of the delegate (a copy of which the applicant provided to the Tribunal as part of this review):
In the application, the applicant indicated that the terms and conditions of employment of the nominee, Lai Ying YUEN, include a base rate of pay of $41,000 per annum and guaranteed annual earnings of $54,000. The applicant also stated that there are no Australian citizens or Australian permanent residents performing equivalent work in the workplace at the same location.
As the guaranteed annual earnings are less than $250,000, subregulation 2.72(10AB) is not met, and therefore, the applicant needs to be assessed against paragraph 2.72(10)(cc).
On 29 June 2016 the applicant was sent a request for information by the Department to clarify if the nominee's base rate of pay was equal to or greater than the Temporary Skilled Migration Income Threshold (TSMIT) of $53,900. Evidence provided to the Department prior to 29 June 2016 indicated the nominee's base salary was less than the TSMIT. The applicant was given 28 days in which to provide a response to the Department.
On 13 July 2016, the applicant provided evidence to the department to demonstrate the terms and conditions of employment that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the workplace at the same location.
The evidence supplied to the department by the applicant included:
A letter dated 18 September 2015 on the applicant's letterhead addressed to the nominee advising the nominee's base salary would be $41,000. The nomine was also be paid a bonus/commissions on sales of approximately $20,000. (NB: the applicant has also provided another letter dated 18 September 2015 whereby a bonus/commissions on sales of approximately $30,000 was to be paid to the nominee. This letter was attached to the online application on 19 May 2016 prior to the initial assessment of 29 June 2016).
A bonus or commissions earnt are not included in the definition of earnings as per Regulation 2.57A.
The applicant's letter of 18 September 2015 addressed to the nominee also stated, "If you do not achieve the Government TSMIT amount or greater that ($53,900) we will provide you with bonus payments to ensure we are within the Government guidelines and every year going forward."
On assessment of the evidence submitted by the applicant on the above date, I have concluded that the base rate of pay that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the workplace at the same location is $41,000. As this amount is below the current temporary skilled migration income threshold of $53,900, the applicant therefore does not satisfy paragraph 2.72(10)(cc).
In the application, it was also stated that the nominee's proposed guaranteed annual earnings (GAE) would be above the current temporary skilled migration income threshold of $53,900. As the GAE included monetary benefits, namely a bonus or commissions on sales, which are not included in the definition of earnings as per Regulation 2.57A the applicant's GAE will therefore be considered to be equal to and no greater than the base rate of pay of $41,000. The applicant therefore, does not meet paragraph 2.72(10A)(b).
Therefore, I am not satisfied that the applicant meets subregulation 2.72(10).
IMMI 13/028 states that for the purposes of paragraph 2.72(10)(cc) of the Regulations, that the temporary skilled migration income threshold is $53,900. Similarly, for the purposes of subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of the Regulations, annual earnings of $250,000.
As outlined above, the delegate refused to approve the applicant’s nomination on 23 September 2016. On 4 October 2016, the applicant lodged its application for review with the Tribunal. Included with the application for review was a copy of a contract of employment between the applicant and the nominee dated 24 September 2016 that specified the remuneration for the position as $54,000 and therefore, that it was greater than the temporary skilled migration income threshold of $53,900. The employment contract states that discretionary bonus and incentive payments may be paid in addition to the (revised) annual salary.
Also accompanying the application for review was a submission from the applicant dated 3 October 2016 and a copy of a payslip to the nominee for the period 24-30 September 2016 specifying the nominee’s annual salary at $54,000 and a gross weekly pay of $1038.46. This is the only payslip lodged with the application for review. The applicant’s submission confirmed that the nominee’s salary had been reviewed and she was now earning a base salary of $54,000 plus commissions.
As set out above, on 18 December 2017, the Tribunal wrote to the applicant under section 359(2) of the Act, inviting information that demonstrates that the nomination meets all current criteria in regulation 2.72. The applicant was directed to provide its response by 2 January 2018. As at the date of this decision, the Tribunal has not received any response to its section 359(2) letter.
Having regard to the information set out above, given the revisions to the nominee’s base rate of pay were made one day after the delegate made its decision to refuse the nomination on the basis that the applicant did not satisfy 2.72(10)(cc) or 2.72(10A)(b) regarding the base rate of pay, the Tribunal places little weight on the revised employment contract dated 24 September 2016.
The only other evidence of the nominee’s base rate of pay is one payslip dated more than fifteen months ago. The Tribunal has not received any current information regarding the employment contract between the applicant and the nominee or any supporting evidence of the nominee’s base rate of pay or annual remuneration for the last fifteen months since the application for review was lodged. This is despite the applicant being specifically invited to provide this information.
As set out in the delegate’s decision record, the applicant provided the department with a letter dated 18 September 2015 on the applicant's letterhead addressed to the nominee advising the nominee's base salary would be $41,000. The nominee was also to be paid a bonus or commissions on sales of approximately $20,000 (although this varied from a previous submission that the bonus/commissions on sales was $30,000) or equivalent amount to meet the temporary skilled migration income threshold of $53,900. However, as set out above at [15], bonuses or commissions earnt are not included in the definition of earnings as per Regulation 2.57A.
The applicant also indicated to the department that a former employee, employed to perform the same role in May 2014, Miriam Wallace, was on a salary of $40,000.[4] While there is no indication as the to the citizenship or residency status of Ms Wallace, given the applicant appears to have consistently offered a salary of $40,000 - $41,000 for this role and no recent additional information has been provided by the applicant to the Tribunal to substantiate otherwise, the Tribunal is not satisfied that the base rate of pay that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the workplace at the same location would be greater than the current temporary skilled migration income threshold of $53,900. As a result, the Tribunal is not satisfied that the applicant meets r.2.72(10)(cc).
[4] D1, f.64
Having carefully considered all the evidence, the Tribunal is not satisfied that the annual earnings of the nominee are equal to or greater than the temporary skilled migration income threshold of $53,900. There is no information before the Tribunal to suggest that the annual earnings of the nominee are equal to or greater than $250,000 and therefore, the Tribunal’s capacity under r.2.72(10A) to disregard the criterion in r. 2.72(10)(cc) does not arise. Likewise, as the Tribunal is not satisfied that the annual earnings of the nominee are equal to or greater than those specified in instrument IMMI 13/028, the exemption from r.2.72(10)(cc) under r.2.72(10AB) does not apply.
For these reasons the requirements of r.2.72(10)(cc) are not met.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Saxon Rice
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.

[2018] AATA 105

15 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction