Quickpoint Pty Ltd ATF Shimizu Raine Square Family Trust (Migration)

Quickpoint Pty Ltd ATF Shimizu Raine Square Family Trust (Migration) [2020] AATA 4510 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Quickpoint Pty Ltd ATF Shimizu Raine Square Family Trust
CASE NUMBER:  1730675
HOME AFFAIRS REFERENCE(S):          BCC2017/1102494
MEMBER:Amanda Mendes Da Costa
DATE:27 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 27 October 2020 at 10.30am

CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – nominee performing tasks for all entities in group of companies – employment contracts between nominee and two entities in group – nominee’s tasks compared with ANZSCO description – nominee not based at applicant’s premises – applicant’s organisational chart does not include nominated position – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GA, 140GB(2)
Migration Regulations 1994 (Cth), rr 2.72(10)(f), (h), 2.73
CASE
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 Immigration and Border Protection on 17 November 2017 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 March 2017. 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.soecified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(h). In her decision, the delegate found that:
On 21 March 2017, Quickpoint Pty Ltd Atf Shimizu Raine Square Family Trust lodged their nomination application on 22 March 2017, a contract between the nominee, Ruoxin Feng and Cityplus Holdings Pty Ltd as trustee for Shimizu family Trust was provided.
To date, no contract of employment between the sponsor and the nominee has been provided. The two entities referred to above hold separate ABNs and no evidence has been provided to indicate that they are the same business. As no contract of employment has been provided between the sponsor and nominee to support the nomination, I am unable to make a full assessment of the application. Consequently, the applicant does not satisfy r.2.72(10)(h).
Mr Laurence Chia, a director of the company appeared on behalf of the applicant before the Tribunal on 17 September 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
The documents provided to the Tribunal for the purpose of the review, included the following:
·Trust deeds for Shimizu Raine Square Unit Trust;
·letter of support dated 7 November 2016 from Lawrence Chia, regarding the nominee;
·lease agreement (dated 8 November 2016) for property at Unit 1, 47 Tate Street, Bentley, Western Australia, 6102;
·offer of employment dated 17 August 2016 between Cityplus Holdings Pty Ltd as trustee for Shimizu Family Trust and the nominee;
·offer of employment dated 5 January 2018 between Quickpoint Pty Ltd and the nominee;
·letter from accountants SC Lee & Associates dated 21 September 2020;
·organisational chart and employee chart;
·taxation returns for the Shimizu Raine Square Unit Trust for the years ended 30 June 2018 and 2019;
·PAYG payment summaries (for the nominee) for the periods 1 July 2018 to 30 June 2019 and 24 December 2018 to 30 June 2019;
·ASIC Current and Historical Company Extract;
·labour market testing, salary survey and advertisements;
·company business name extract;
·business activity statement (Shimizu Raine Square Unit Trust) for period April to June 2018;
·notification of approval (for Quickpoint Pty Ltd) as a standard business sponsor, for the period 8 February 2019 to 8 February 2024;
·letter of support by Lawrence Chia (for the nominee) dated 7 November 2016; and
·written submissions dated 7 August 2020.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Evidence of Lawrence Chia
Mr Chia is a director and shareholder in the applicant company. The business activities of the applicant involve the management of Shimizu Harbour Town, a restaurant located in the Water Town Shopping Centre in Wellington Street, West Perth, Western Australia. The restaurant serves Japanese cuisine with an emphasis on Sushi and is open seven days per week. Apart from Friday (when the restaurant closes at 9pm) it closes each day between 4 to 5pm.
Mr Chia explained to the Tribunal that the Family Trust also owns a majority share in a second business – Yamato Kaiten Sushi Japanese restaurant in Claremont Quarter, Perth, operated by Zarpol Holdings Pty Ltd. Until six months ago the equity in this business was 27% when it increased its investment to a 54% share. Mr Chia manages the operations of each of the restaurants on a day-to-day basis, in addition to other activities including the importation and sale of chopsticks, disposable cutlery and display fridges and freezers.
The applicant is also currently investigating investment opportunities in other businesses, particularly in the retail sector. Mr Chia explained that the Covid-19 pandemic had led to many small businesses experiencing financial difficulties and he was looking to invest in suitable businesses which had the potential for improvement. The nominee had been assisting him in researching these prospective investments.
The Family Trust’s investments are controlled by another entity – City Plus Holdings Pty Ltd. This company controls the resources and operations of the applicant, together with those of Zarpol Holdings Pty Ltd, Cityteam Pty Ltd, Truewest Pty Ltd and Stepwest Holdings Pty Ltd. Cityplus Holdings Pty Ltd receives a service fee from each of these companies.
The Tribunal notes that the applicant proposes that if the nomination application is approved, the nominee will be employed by the applicant, which is currently her employer. However, Mr Chia told the Tribunal that the nominee is now performing tasks for all of the Family Trust businesses, not only the applicant. The Tribunal questioned Mr Chia about the reason for the employment contract submitted to the Department for the nominee (dated 17 August 2016) which shows the proposed employer as Cityplus Pty Ltd as trustee for the Shimizu Family Trust whilst the employment contract provided to the Tribunal for the nominee (dated 5 January 2018) shows the proposed employer as the applicant. Mr Chia responded by telling the Tribunal that most of the recent investments made by the Family Trust had been made in Zarpol Holdings Pty Ltd and that was the reason for the employment contract being between that company and the nominee.
Mr Chia explained that he required someone to conduct research and the financial investigation of potential businesses in which the Family Trust could potentially invest. He had recruited the nominee after being referred to her by another accountant who was performing a similar role for the applicant. He said that it was difficult to find someone to undertake this type of forensic accounting role.
Mr Chia further explained that the nominee had been employed by the applicant in the nominated position for the past three and a half years, undertaking research, conducting forensic investigations and providing advice regarding the financial viability of prospective investments for the Family Trust. She was also involved in the necessary investigations prior to the increase in the investment in Zarpol Holdings Pty Ltd and assisted the directors of each of the Family Trust companies[1]. The nominee’s work is not performed at the premises of the applicant.
[1] i.e. the applicant, Zarpol Holdings Pty Ltd, Cityteam Pty Ltd, Truewest Pty Ltd and Stepwest Holdings Pty Ltd.
The Tribunal further questioned Mr Chia about the role currently being performed by the nominee and whether the tasks undertaken by her were consistent with those set out in the ANZSCO dictionary for the position of Accountant and the position description provided to the Tribunal, which included accounting entries for sales, purchases, and bank deposits; reconciliation of payments and receipts; preparing business activity statements and taxation returns; reconciliation of assets, loans and petty cash; and assisting in the preparation and maintaining up-to-date records of all accounts.
Mr Chia said that the nominee was not responsible for performing the above tasks which were undertaken by other employees and the applicant’s external accountants. The nominee’s role is primarily to undertake research, conducting financial investigations, preparing reports and advising on matters such as the purchase of businesses for the applicant and other associated companies.
The Tribunal questioned Mr Chia about the reason for the employer to the first employment contract for the nominee being Cityplus Pty Ltd and the employer to the second contract being the applicant. Mr Chia explained that the nominee has undertaken (and will continue if the nomination application is granted) to perform tasks for the applicant, Zarpol Pty Ltd and the other associated entities of the Shimizu Family Trust. He said that most of the nominee’s recent work has been performed for Zarpol Holdings Pty Ltd and that different employers being listed in the two employment contracts was due to the nominee performing work for more than one of the entities in the Family Trust.
Issues
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.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal notes that in his letter of support (dated 7 November 2016) Mr Chia describes the nominee’ proposed role as follows:
The candidate will be placed in the associated entity, Cityplus Holdings Pty Ltd. As an investment and management company of all the associated entities of the Shimizu Family Trust, we need to have a full-time accountant to help with the business development.
The accountant will be responsible for various accounting functions within Shimizu Group. Cityplus Holdings Pty Ltd is in the process of investing in new businesses in the food service industry. The business proposal has been sent out to Garden City Shopping Centre, Innaloo Shopping centre and new established shopping centres. With business expansion, more staff will be recruited. The accountant will be assisting with bank reconciliation, payroll, consolidated reports etc.
The human resource strategy of Cityplus Holdings Pty Ltd is to train loyal staff and keep a core team within the organisation. It is a centralised office in the group to streamline management. The accountant is in the role of providing financial services to the subsidiaries, associated entities and business partners.
The proposal for Cityplus Holdings Pty Ltd to employ the nominee (as set out in the above letter) is consistent with the first employment contract where that company is listed as the nominee’s employer. This is not consistent with the second contract of employment which lists the applicant as the nominee’s proposed employer. The Tribunal notes that Mr Chia explained these discrepancies by stating that the nominee was currently engaged (and would be if the nomination application was approved) in undertaking work for all of the companies within the Shimizu group as required and her role was not limited to only the applicant.
The Tribunal further notes that the financial investigations undertaken by the nominee into the increase in the investment in the restaurant business operated by Zarpol Holdings Pty Ltd was not undertaken for the applicant and there is no evidence of any financial investigations, reports or advance given by the nominee, in respect of the potential purchase of or investment in further businesses by the applicant.
The Tribunal has considered the PAYG payment summaries provided to it by the applicant, which show that for the period 1 July 2018 to 30 June 2019 gross payments of $12,608.00 to the nominee by the applicant and for the period 24 December 2018 to 30 June 2019 gross payments of $20,118.00 to the nominee by Zarpol Holdings Pty Ltd.
The Tribunal has also considered the letter of support from SC Lee & Associates dated 21 September 2020, which was submitted by the applicant. In the letter, these accountants state:
We act as Accountant and Tax Agent for Zarpol Holdings Pty Ltd (trading name: Yamato). Due to the introduction of Single Touch payroll, the payroll systems (MYOB) that the above- mentioned entity is using is no longer able to generate payment summary for employees for year ended 30 June 2020. Accordingly, we would like to confirm in writing that Ms Feng’s earnings from the abovementioned entity for year ended 30 June 2020 as follows:
Gross wages:             $22,778.00
Tax Withheld:             $2,302.00
Super Guarantee:        $2,102.73
The organisational chart and employee chart for the applicant (as of 10 August 2020) shows the roles of managing director, restaurant manager, chefs (2), cooks (2), a kitchen hand and wait staff. There is no mention of a current or prospective position for an Accountant (General) for the company.
The ANZSCO dictionary describes the role of an Accountant (General) as one providing services relating to compliance- based financial reporting, auditing, insolvency and accounting information systems and advising on associated record-keeping requirements.
The tasks of the position (as set out in the ANZSCO dictionary) include the following:
·assisting in formulating budgetary and accounting policies;
·preparing financial statements for presentation to boards of directors, management, shareholders and governing and statutory bodies;
·conducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation;
·examining operating costs and organisations’ income and expenditure;
·providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements;
·providing financial and taxation advice on business structures, plans and operations;
·preparing taxation returns for individuals and organisations;
·liaising with financial institutions and brokers to establish funds management arrangements;
·introducing and maintaining accounting systems and advising on the selection and application of computer-based accounting systems;
·maintaining internal control systems;
·may appraise cash flow and financial risk of capital investment projects.
The Tribunal accepts that it is proposed the applicant will undertake some of the tasks of an Accountant (General) as set out in the ANZSCO dictionary, including conducting financial investigations, preparing reports and advising on the purchase and sale of businesses. However, given Mr Chia’s oral evidence about the nominee’s current and her intended role, it is not satisfied that the tasks required to be undertaken encompass the range of tasks that would be expected of an Accountant (General), including the tasks referred to in paragraph 15 of this decision.
Based on the above, the Tribunal is not satisfied that that the position associated with the nomination is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
Given that the applicant does not meet one of the requirements for the approval of the nomination, the Tribunal does not consider that it is necessary to consider the remaining requirements in r.2.72.
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.

[2020] AATA 4510

27 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness