Punjabii By Nature Pty Ltd (Migration)

Punjabii By Nature Pty Ltd (Migration) [2022] AATA 2565 (16 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Punjabii By Nature Pty Ltd
REPRESENTATIVE:  Mr Gagandeep Singh (MARN: 0964638)
CASE NUMBER:  1902723
HOME AFFAIRS REFERENCE(S):          BCC2017/3159694
MEMBER:Amanda Mendes Da Costa
DATE:16 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 16 June 2022 at 12.44pm

CATCHWORDS
MIGRATION – approval of a nomination – occupation of Cook – genuine position – nominee’s employment had ceased – updated financial information – discrepancies between organisational charts – wage and salaries expenditure – financial capacity to employ the nominee – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 359
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 21 January 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 31 August 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72(1)(f) because it did not demonstrate that the position associated with the nominated occupation was genuine.
Mr Devinder Pal Sehmi, the Manager of the applicant’s business, appeared before the Tribunal on 29 April 2022 and 1 June 2022 to give evidence and present arguments on behalf of the applicant.
The applicant was represented in relation to the review. The representative also participated in the hearings.
The documentation provided to the Tribunal for the purpose of the hearing includes the following:
·Certificate of company registration and ASIC extract.
·Business activity statements (BAS) for the periods January to March 2021 and April to June 2021.
·Notification of approval as a standard business sponsor, dated 22 May 2018.
·Agreement for renewal of lease, dated 7 February 2022.
The above documentation was provided to the Tribunal on 10 February 2022 in response to a s.359(2) invitation from the Tribunal.
The following documents were provided to the Tribunal prior to the hearing on 1 June 2022:
·     BAS summary statement for the period October to December 2021.
·     Draft financial statement for the year ended 30 June 2021.
·     Employment contract dated 10 June 2022.
·     Organisational chart.
Mr Sehmi appeared on behalf of the applicant at the initial hearing on 29 April 2022. He said he had been managing the applicant’s business since 2016. He told the Tribunal that his sister Ms Amandeep Kaur (the director of the applicant company) was not available to give evidence on that date and he was authorised by her to speak on behalf of the applicant at the hearing. In discussions with the Tribunal Mr Sehmi advised that the nominee was no longer employed at the business premises in Berwick which was listed in the nomination application form as the place where the nominee would be employed. He further explained that the nominee’s previous employment with the applicant had ceased for several months. And had only recommenced a week before the hearing at the applicant’s premises in Springvale.
In response, the Tribunal noted that the documentation provided by the applicant did not reflect these arrangements and that the applicant had not provided an organisational chart, employment contract, financial statements, company taxation returns or BAS since June 2021. The Tribunal informed Mr Sehmi that it proposed adjourning the hearing until 24 May 2022 and giving the applicant until 17 May 2022 to provide any further documentation on which it relied and sought Mr Sehmi’s response to this proposal. Mr Sehmi agreed to this proposal and the matter was adjourned by the Tribunal. The Tribunal also requested that Ms Kaur (as a director of the company) appear at the next hearing to give evidence.
On 19 May 2022 the applicant sought a further postponement of the hearing for a period of two weeks on the grounds that the applicant was experiencing difficulties in obtaining financial documents from its accountant.
On 20 May 2022 the Tribunal advised the applicant that it was prepared to accede to the applicant’s request and further adjourned the hearing until 1 June 2022. The Tribunal notes that the applicant did not chose to provide any further documentation to it by 17 May 2022 or the hearing on 1 June 2022.
Late in the afternoon on 31 May 2022 the applicant sought a further postponement of the hearing on the basis that it had only recently received further financial documentation from the applicant’s accountants. Given the late timing of the request, the Tribunal decided to proceed with the hearing in order to discuss the applicant’s failure to comply with the Tribunal’s request for any further documentation to be provided by 17 May 2022.
Immediately prior to the hearing commencing on the following day, the applicant provided the Tribunal with a copy of an updated employment contract (dated 10 May 2022) and an organisational chart.
Mr Sehmi appeared again on behalf of the applicant at the hearing on 1 June 2022. However, despite the Tribunal’s request, Ms Kaur did not appear and no reason was given to the Tribunal for her lack of appearance.
During the hearing the Tribunal discussed with Mr Sehmi and the applicant’s representative, the applicant’s failure to provide it with financial documentation (including company taxation returns, financial statements, recent BAS and PAYG payment summaries for the nominee). Mr Sehmi explained that the applicant had recently changed accountants and this accounted for the delay in obtaining any further documentation for the Tribunal.
The Tribunal indicated that it considered the applicant had been given sufficient time in which to provide the requested documentation and in particular could have provided documents such as the PAYG summaries and payslips for the nominee together with a position description and genuine need statement from its own records, without the necessity of the accountant’s providing such information.
The Tribunal noted that given the hearing invitation had been sent to the applicant on 18 March 2022 it had over nine weeks in which to prepare for the hearing and to provide any further documentation on which it sought to rely. The Tribunal further noted that it had postponed the hearing twice at the request of the applicant and had given the applicant additional time in which to provide further documentation following the hearing on 29 April 2022.
The Tribunal further advised Mr Sehmi that in such circumstances it considered that the applicant had been provided with sufficient time and opportunity to prepare for the hearing and provide any supporting material and proposed to go ahead with the hearing that day. However, it advised that it give the applicant a further opportunity to provide any documentation on which it sought to rely by 8 June 2022. Accordingly, the Tribunal proceeded with the hearing.
In response Mr Sehmi and the applicant’s representative indicated that they would participate in the hearing and provide further documentation by the nominated date.
Although the applicant did not provide any additional documentation as requested by 8 June 2022, it did provide the Tribunal with the following documentation on 9 June 2022 and 14 June 2022:
·PAYG payment summaries for the nominee for the years ended 30 June 2014 and 30 June 2019.
·Bundle of payslips issued by the applicant for the nominee.
·Notices of Assessment for the nominee for the 2014, 2015, 2016 and 2017 financial years.
·Skills assessment (VETASSESS) for the applicant, dated 16 November 2017.
·Tax receipts for the nominee dated 11 August 2014, 11 September 2015 and 16 September 2016.
·Written submissions.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The applicant operates a restaurant specialising in Indian cuisine and has nominated the occupation of Cook ANZSC 351411 for the nominee, Bhavjot Singh.
Evidence of Devinder Pal Sehmi
Mr Sehmi told the Tribunal that he was employed by the applicant as the Manager of the applicant’s business, which is an Indian restaurant trading as Punjabi Thali and situated at 351 Springvale Road, Springvale, Victoria. The restaurant has been operating at that address since December 2016. The premises seats 50 customers and is open for dinner only seven days per week. The opening hours are between 5pm and 1 am. In addition to eat-in customers the restaurant serves takeaway and home delivered meals using delivery platforms.
Mr Sehmi explained that he was employed in the business on a full-time basis with an annual salary of $55,000.00 plus superannuation. In addition the business employs the nominee on a full-time basis as a Cook and also employs four part-time Cooks who each work approximately 20 hours per week. The business further employees a dishwasher on a full-time basis and three waitresses who each work approximately 20 hours per week.
Mr Sehmi further explained that the nominee had been employed in the position of Cook in the Springvale restaurant since approximately one month prior to the hearing. He had previously been employed at another restaurant owned and operated by the applicant, which was located in Berwick, Victoria. The nominee was also employed there as a Cook from the opening of that restaurant in December 2016 until the applicant’s nomination application for him was refused by the delegate. Following this decision the terms and conditions of the nominee’s visa prevented him from working in Australia and this was the reason he left his employment with the applicant.
The Tribunal notes that in the nomination application form, the applicant listed the place at which the employee would be employed was 17 Blackbourne Square, Berwick.
Approximately four weeks ago the nominee approached the applicant about recommencing his employment. Due to staff shortages, the applicant was in a position to reemploy the nominee and he had been working in the position of Cook since he made by initial approach. Mr Sehmi said he was unaware whether the nominee had been employed in any other position between January 2019 and April 2022.
Mr Sehmi described the nominee’s role as involving the preparation of food and the cooking of entrees and main meals to order.
When the Tribunal questioned Mr Sehmi about the total salary payments made by the applicant for its staff in the 2021 financial year, he said that he was unaware of these figures. He thought that the nominee was currently being paid approximately $900.00 per week but was unsure whether this figure was a pre or post tax figure.
However, the applicant’s representative directed the Tribunal’s attention to the draft financial statements for the business for the 2021 financial year, which shows that for the 2020 financial years the total sales of the business was $806,542.00 with total expenses of $$366,769.00 and total wage and salary payments of $148,849.00 and superannuation payments of $14,104.00.
The representative further explained that the draft statement for the 2021 financial year demonstrates that the total sales of the business was $763,359.00 with total expenses of $259,445.00 and total wage and salary payments of $80,741.00 and superannuation payments of $7,626.00. Mr Sehmi agreed that these figures accurately reflected the financial position of the business for those years.
When invited to provide any additional information or comments to the Tribunal, Mr Sehmi said that the business was profitable and had a good reputation and favourable reviews by customers. He described the restaurant as a very popular venue for late night meals and that many customers travelled from the other side of Melbourne for the restaurant’s traditional cooking techniques and recipes.
Documentation provided
The Tribunal notes that the company registration certificate shows that the applicant was registered with ASIC on 30 November 2016 and the Notification of Sponsorship Approval shows that the applicant was approved as a standard business sponsor on 22 May 2018 for the period commencing 18 May 2018 and ending on 22 May 2023.
The lease renewal dated 7 February 2022 shows that the lease for applicant’s business premises at 351 Springvale Road, Springvale has been renewed for a three-year period commencing 7 February 2022.
The organisational chart indicates that in addition to the director (Ms Kaur) and Restaurant Manager (Mr Sehmi) the applicant employs the nominee in the position of Cook on a full-time basis, a Chef on a full-time basis, three part-time Chefs, two part-time Waitresses and a full-time Waitress. However, the chart contains no reference to the position of Dishwasher.
The Tribunal notes that the BAS for the period January to March 2021 shows total sales for the business of $263,034 and total wages and salaries of $14,807.00 and for the period 1 April to June 2021 total sales of $273,620 with total wages and salaries of $17,867.00. The activity statement for the period October to December 2021 shows total [1]sales of $368,750 with total wages and salaries of $5,983.00.
[1] Clear Tax, Accountants, 418 Church Street, Richmond, Victoria.
The PAYG payment summary for the nominee for the year ended 30 June 2014 shows that the nominee received gross payments of $22,935 for the period 1 July 2013 to 30 June 2014.
The PAYG payment summary for the nominee for the year ended 30 June 2019 shows that payments (totalling $15,640.00) were made to the nominee during the period 1 January 2019 to 30 April 2019.
The bundle of payslips (17 in total) indicate that for the period 31 December 2018 to 28 April 2019 the applicant paid the nominee gross payments of $ 920.00 per week (exclusive of superannuation).
The Notices of Assessment issued by the Australian Taxation Office (ATO) show that the nominee’s taxable income for the following years was:
·2014               $24,678.00
·2015               $53,058.00
·2016               $53,015.00
·2017               $18,062.00
The Tax Receipts (issued by the ATO )show that the total tax assessed for the nominee was $785.00 in 2014, $8,586.00 in 2015 and $8,572.00 in 2016.
The Skills assessment demonstrates that the nominee satisfactorily completed his skills assessment in the nominated occupation of Cook (ANZSCO 351411).
The applicant’s written submissions may be summarised as follows:
·The nominee was initially employed in a business operated by Ms Kaur as a Cook – the Sehmi Punjabi Thali restaurant in Clayton. At that time the applicant owned and operated another restaurant, located in Springvale. The nominee was employed at the Clayton restaurant between 29 January 2014 and 15 November 2016.
·When the applicant closed its Clayton restaurant, it offered the nominee a position at its newly opened restaurant (Shan e Punjab), located in Berwick. He worked there and after that restaurant closed, was employed by the applicant at its Springvale restaurant.
·Due to work restrictions, the nominee was unable to continue working for the nominee when the delegate refused its nomination application in January 2019.
·When the nominee was subsequently offered a job in a regional area he went to work there until the floods affected the area and the business where he was employed. He has recently been employed by the applicant as a Cook.
·The tasks to be performed by the nominee in the nominated position are commensurate with those set out in the ANZSCO dictionary of the position of Cook.
Findings
The Tribunal accepts that the applicant company (which was registered in November 2016) currently operates an Indian restaurant located in Springvale, Victoria. The applicant has previously operated a restaurant located in Berwick and Ms Kaur was associated with another restaurant business in Clayton. The applicant currently holds a lease for its business premises, which is valid until February 2025.
The Tribunal notes that there are some discrepancies between the information provided in the organisational chart and the oral evidence of Mr Sehmi to, particularly in regard to the description of the three part-time staff who the organisational chart records as Chefs and the Mr Sehmi describes as Cooks. Mr Sehmi also claimed in his evidence that the business employees a full-time dishwasher whilst the organisational chart does not contain such a position. The Tribunal further notes that the nominated position of Cook is listed in the organisational chart and was mentioned by Mr Sehmi in his oral evidence.
The Tribunal notes that the applicant has not provided any further evidence regarding the organisational structure of the business (including payroll and superannuation contribution records) which could inform the Tribunal about the number of employees employed in the business, their salaries and hours of work. Based on the evidence before it, the Tribunal is not satisfied that the applicant’s business requires the services of a Cook on a full-time basis.
The Tribunal accepts that the nominee was employed by the applicant for a four-month period in early 2019, as evidenced by the PAYG summary and payslips for 2019. The Tribunal notes that the information contained in the PAYG payment summary regarding the nominee’s earnings in 2019 is consistent with that contained in the payslips provided.
Whilst the Tribunal acknowledges that the nominee earned income in the years 2014 to 2017 (as evidenced by the ATO Notices of Assessment) it does not accept that these notices indicate that he was employed by the applicant (or any other business operated by Ms Kaur). Whilst the PAYG payment summary for 2014 does provide some evidence that the nominee was employed by the applicant for the period 1 July 2013 to 30 June 2014, the Tribunal is concerned that there is a difference between the documents for the gross income for the nominee. In this respect the Tribunal notes that in the PAYG payment summary the amount claimed is $22,935.00 and in the Notice of Assessment, the total figure is $24,678.00.

If the nominee had been employed by the applicant during the 2014 financial year, the Tribunal would expect that the figure claimed for his income to be consistent between the PAYG payment summary and the Notices of Assessment. Accordingly, the Tribunal attaches limited weight to the income contained in the PAYG payment summary and in the absence of independently verifiable evidence confirming the nominee’s employment for the years 2014 to 2017 does not accept that the nominee was employed by applicant in those years.
The Tribunal is further concerned that the applicant has provided limited documentary evidence to support Mr Sehmi’s claim that the nominee was re-employed by the applicant approximately a month before the hearing on 1 June 2022, despite being invited to do so by the Tribunal at the hearing on 29 April 2022. The Tribunal acknowledges that in relation to the nominee’s claimed current employment, the applicant relies on the updated employment contract and the organisational chart supplied to the Tribunal. Although the employment contract has been signed by Ms Kaur and the nominee there is no date of commencement for the nominee’s employment nor is there any mention of his current employment position. The organisational chart does list the nominee in the position of Cook. However, there is no information contained in the document whether the nominee is currently occupying this position or will take up the position at a later date. More significantly, the applicant has not provided any payslips or other documentary evidence of any wage or superannuation payments made to the nominee during the period of his claimed current employment. The Tribunal considers that if the nominee had been employed by the applicant for a month prior to the second hearing, the applicant would have provided payslips for this period, to the Tribunal.
In these circumstances, the Tribunal does not accept Mr Sehmi’s evidence regarding the reemployment of the nominee. The Tribunal further notes that it found Mr Sehmi’s evidence regarding this matter was vague and lacking in detail about the date the nominee recommenced his employment.
The Tribunal considers that although the BAS provided show that the total sales for the applicant were in excess of $250,000.00 for each quarter reported, the amounts claimed for wages and salaries are modest and in the view of the Tribunal are not commensurate with the number of employees Mr Sehmi claimed are employed by the applicant or those who are listed in the organisational chart. In this respect, the Tribunal notes that Mr Sehmi’s annual salary is $55,000.00 which equates to $12,696 per quarter per week and that the applicant employs at least one employee as a Chef or Cook in a full-time position, several part-time employees and according to Mr Sehmi a full-time Dishwasher. Accordingly, the Tribunal is not satisfied that the amounts expended by the applicant on wages and salaries are commensurate with the number of employees and positions claimed (including the nominated position).
The financial statement provided has been prepared by the applicant’s accountants but has not been signed by those accountants or Ms Kaur on behalf of the company. The document was described by the applicant’s representative as being in draft form only. The Tribunal also notes that the financial information is not supported by evidence of company taxation returns, Notices of Assessment for the business’s taxable income or bank statements.
Given that the financial statement is in draft form and is unsigned by either the applicant’s accounts or the Ms Kaur (as director of the company), the Tribunal places limited weight on the accuracy of the information provided in the statement and does consider that it satisfies the Tribunal that in the 2020 and 2021 financial years, the applicant had the financial capacity to employ the nominee in the nominated position on a full-time basis.
Conclusion
Overall, whilst the Tribunal accepts that there is oral and documentary evidence before it regarding the nominee’s previous and current employment by the applicant and its financial capacity to employ him, it does not consider that the evidence is either reliable or consistent. Based on the evidence before it, the Tribunal is not satisfied that (apart from a four-month period in early 2019) was previously employed by the applicant. Nor is the Tribunal is satisfied that the nominee is currently employed by the applicant in the nominated position.
The Tribunal is further not satisfied that the evidence before it establishes the applicant’s current capacity to employ the nominee.
For these reasons the Tribunal is not satisfied that the position associated with the nominated occupation is genuine and accordingly, the requirements of reg 2.72(10)(f) are not met. Given that the applicant does not meet one of the criteria in reg 2.72, the Tribunal does not consider that it is necessary for it to consider the remaining criteria.
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.
Amanda Mendes Da Costa
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.

[2022] AATA 2565

16 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction