RJML Pty Ltd (Migration)

RJML Pty Ltd (Migration) [2018] AATA 1875 (29 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  RJML Pty Ltd
CASE NUMBER:  1600792
DIBP REFERENCE(S):  BCC2015/3253254
MEMBER:John Cipolla
DATE:29 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 29 March 2018 at 1:27pm

CATCHWORDS
Migration – Nomination refusal –Café and Restaurant Manager – Genuine need for the position – Standard business sponsor – Exclusionary caveats applied to the occupation of Cafe and Restaurant Manager – Decision under review affirmed
LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r 2.72

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 13 January 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 5 November 2015. 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 r.2.72(10)(f) because the delegate was not satisfied that there was a genuine need for the position of Café and Restaurant Manager in the business.
The applicant appeared before the Tribunal on 13 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.
At the outset of the review hearing the Tribunal explained in detail, for the benefit of the applicant and the nominee, the merits review process. The Tribunal noted that the applicant business applied for nomination approval on 5 November 2015. The Tribunal noted that the Departmental delegate refused the nomination application in a decision made on 13 January 2016. The Tribunal noted that the reason for the Departmental refusal was that the delegate was not satisfied that the nominated occupation was genuine. The Tribunal noted that an application for merits review was lodged with the Administrative Appeals Tribunal on 25 January 2016.
The Tribunal noted that after the matter was constituted the Tribunal set the matter down for a combined review hearing on 17 November 2017. The Tribunal noted that the applicant sought an adjournment of the hearing date because she was overseas at that time. On that basis the Tribunal rescheduled a hearing to 13 December 2017. That hearing had to be rescheduled by the Tribunal due to unforeseen circumstances. The Tribunal noted that based on the applicant’s conversations with a Registry Officer the applicant had been aggrieved by the cancellation of the rescheduled hearing as she had travelled from overseas to attend that hearing. The Tribunal noted that this factor had not been communicated prior to the scheduled hearing and had it been, alternate arrangements to accommodate the rescheduled hearing may have been able to be put in place. The Tribunal further noted that the applicant had expressed to a Registry Officer that there had been inordinate delays around the processing of the review application. The Tribunal explained to the applicant that there are a range of factors that could lead to delays in the processing of a review application and that the sources of these delays were beyond the Tribunal Members control.
The Tribunal further noted that it was bound to conduct reviews that were fair, lawful, efficient and quick. The Tribunal noted that migration law was subject to change, particularly in the business migration law space and that the application for review before the Tribunal was affected by the changes announced by the Federal Government to the Temporary Business visa program on 19 April 2017, on the basis that the nominated occupation of Café or Restaurant Manager was now the subject of an exclusionary caveat.
The Tribunal noted that a business seeking a nomination approval had to meet all of the regulatory criteria in regulation 2.72 of the Migration Regulations. The Tribunal reiterated that in addition to this since 19 April 2017 certain occupational categories were the subject of exclusionary caveats and one such occupation was Café and Restaurant Manager.
The Tribunal noted that it had taken into consideration the evidence provided to the Department in support of the nomination application, the evidence provided at review and would be considering the evidence provided by both the applicant and the nominee at the review hearing. The Tribunal noted for the benefit of the nominee that his review application was contingent on the outcome of the applicant’s review application as the nominee had to be the subject of an approved nomination by a standard business sponsor. The nominee advised that he understood this.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
REVIEW HEARING
The Tribunal initially took evidence from Ms Lim (hereinafter referred to as the applicant) a Director of the nominating business. The applicant advised that when the business was opened the focus was on the provision of speciality Arabica coffee, the essence of which was altitude, variety, picking, and roasting. The business competed with businesses providing more commercial coffee such as Lavazza and Vittoria. The applicant advised that the business paid farmers direct a lot more for coffee with hints of flavours.
The applicant advised that she wanted to address the Tribunal with regard to the caveat. The applicant advised that the business was located in Marrickville and was a retail shop and that the business was predominantly a coffee bean retail place. The business provided customers with particular blends of coffee offering a wide range of blends including single estate, organic coffee, roasted coffee and micro coffee. The business also offered particular coffees suitable for plungers and other coffee which was suitable for coffee machines. The business also sold coffee to customers. The applicant stated that the business had never served food and had only in recent times begun to sell water. The applicant stated that the business wanted to focus on coffee. The applicant advised that the business was not a fast food or takeaway establishment. The applicant stated that the genesis of the business was a cafe run in Dulwich Hill and that the focus of the business since its inception in Marrickville was just to sell coffee and coffee beans. The applicant stated that coffee bean sales were a big part of sales percentages for the business. The business had expanded to an operation called Gumption in the Strand Arcade in Sydney and another operation called Micro at Sydney’s Barangaroo. The applicant stated the city-based businesses displayed the variety of blends of coffee available as well as served coffee to customers. The applicant stated that the business created curiosity about how interesting coffee could be and the various subtleties in the flavours of the beans. The applicant stated that on Saturdays the business sold out of beans very quickly and leading up to a long weekend demand was high for coffee products. The applicant stated that the business was very much like a retail shop offering multiple blends of coffee along with single estate coffee and that customers could try and then purchase good coffee that is sold in the business. The applicant stated that coffee was tested each day before it was served to ensure that it was at a satisfactory level for service. The applicant stated that the business had been in operation for 14 years and that it had been positively reviewed and had received a number of awards.
The applicant advised that if a person attended the Marrickville branch of the business and had the nominee serving them they would experience his expertise around the blending of coffee, the taste of coffee and the making of coffee. The applicant stated that the business had created new brews of coffee and had introduced coffee dispensed from a beer tap. The applicant stated that the business forged ongoing relationships with farmers in various countries such as Brazil and Bolivia and that the business was very micro specific.
The applicant advised that customers to the business were educated about different types of coffee provided by the business. The applicant stated that the nominee was not just a Cafe Manager but he also coordinated the sales of coffee and that his role was much more akin to that of a Retail Manager. The applicant advised that the nominee was involved in sample roasting, that he commenced in the business as a Barista and was proficient in roasting coffee. The applicant stated that the business strived to push the envelope with regard to speciality coffee and was trying to promote its coffee blends in New York City. The applicant contended that the business provided excellent coffee blends to the people of Sydney. The applicant stated that she saw the business as more of a retail space. She advised the nominee had worked for the business for around 6 years and did an amazing job. The applicant stated that the hospitality industry had an extremely high turnover and that if a business found great staff that they should attempt to do all in their power to keep them in their employ. The applicant advised that her staff developed a coffee pallet. The applicant stated that she did not want to keep the nominee because of his nationality but because of the skills that he brought to the business. She advised that the nominee eventually intended to return to Bangkok to open up his own shop.
The Tribunal took evidence from the nominee. The nominee advised that he commenced work in the business in 2012 at Marrickville when the business only operated one store. The nominee stated that he was passionate about coffee and that he obtained work with the business on a part-time basis when he was in Australia as the holder of a student visa. The nominee stated that during the time that he had worked for the business his skills had improved extensively and that he was offered a sponsorship to work for the business as a temporary business visa holder. The nominee stated that he had a passion for coffee and that he wanted to continue to be part of the business. The nominee stated that he recommended beans to customers and different coffee blends to customers and that he was involved in the sale of good coffee of good quality. The nominee stated that he had learnt a lot about the origin of coffee and about the differential in quality and taste. The nominee stated that he was involved in ordering milk for the business along with cups and coffee.
The Tribunal asked the nominee to outline an average day at work. The applicant stated that he set up the coffee bar and that he and other staff undertook assessments of the coffee to ensure that coffee of the highest quality was served to customers. The nominee stated that he dealt with the cash register and undertook reconciliations at the end of each business day. The nominee stated that he worked as part of the team and there were another four to five people that worked in the shop and that he oversaw and managed them. The nominee stated that he was involved in stock takes. The Tribunal asked the nominee to describe the physical environment of his workplace in Marrickville. He advised that there were 2 coffee machines, one that served customers, and one that was used for the training of staff. There were also a number of blending machines and a number of containers that that were used to store the beans. He advised that the premises had a big roasting machine and a large refrigerator unit for holding milk. The nominee stated that the business had a bean bar for customers to purchase coffee and machines to grind coffee for customers if required. The nominee stated that the business had a range of single estate coffee as well as a range of special blends including a special blend for soymilk and a grinder for decaffeinated coffee. The nominee advised that there was a training room used to train staff and to stock roasted beans.
The Tribunal asked the applicant whether she had any further evidence that she wanted the Tribunal to consider. The applicant added that the business was involved in online sales that involved displaying new blends and specials available. The applicant reiterated the special relationship that the business maintained with farmers throughout South America including recent coffee sourced from Bolivia. The applicant further advised that a number of cafes that sold coffee purchased their coffee beans from the applicant’s business because of their quality.
The Tribunal noted again that since the lodgement of the review application on 25 January 2016, exclusionary caveats applied to a number of occupations on the skilled occupations list including, the occupation of Cafe and Restaurant Manager. The Tribunal made reference again to the relevant exclusion which noted that the caveats excluded positions in a limited service restaurant. The Tribunal noted that a limited service restaurant, includes, but was not limited to, fast food or takeaway services; fast casual restaurant; drinking establishments that only offer a limited food service; limited service cafes including, but not limited to, coffee shops or mall cafes and limited service pizza restaurants. The Tribunal noted that it needed to determine whether the nominee’s position of Cafe or Restaurant Manager in the business was the subject of a caveat because the position operated in a limited service restaurant such as a coffee shop. The Tribunal noted that this information could lead the Tribunal to affirm the decision under review and explained why this was the case. The Tribunal invited the applicant to provide any submissions addressing the caveat along with any additional evidence pertaining to the genuine need for a position of Cafe or Restaurant Manager in the business. The Tribunal asked the applicant whether she wanted time to provide a response and a 2 week period was agreed to. The hearing concluded.
The Tribunal received a post hearing submission from the applicant on 25 February 2018. The Tribunal has given consideration to the submission. The submission notes that the sponsoring business was not in a category captured by the caveat because the business did not serve food. The submission noted that the business was not a limited food service restaurant because the business did not serve any food at all and was predominantly a drinking establishment selling a combination of coffee and coffee beans. The submission goes on to address the genesis of the business, the cafe design, plans for expansion, quality control, hiring and training and development of staff, operating standards of the business and the management of stock in the business. The submission notes in conclusion that a Cafe Manager is responsible for the retail sales in the cafe and that the sale of coffee alone would not sustain the business and that the business was reliant on the sale of coffee beans. The submission notes that the nominee was currently working in the position and was not intent on living in Sydney on a permanent basis and had aspirations of opening up his own coffee shop in the future.
Annexed to the submission were a number of photographs of the business showing the range of coffee beans available for purchase, coffee accessories available for purchase, coffee machines for the preparation of coffee and some seating for customers. Also provided were photographs of the coffee roasting machines and an external photograph of the business.
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).
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in Legislative Instrument IMMI 16/059 as amended by 17/040. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal finds that the operation of r.2.72(10)(aa) and IMMI 16/059 as amended by IMMI 17/040 means that in the case of a nomination for a position as a Café or Restaurant Manager (ANZSCO 141111), such nomination must meet the caveat specified in Note 3 of IMMI 16/059 as amended by IMMI 17/040. Note 3 states:
In relation to specifications of occupations for a Subclass 457 – Temporary Work (Skilled) visa, despite paragraph 2 of this instrument, for the purposes of paragraph 2.72(10)(aa) of the Regulations, the specification excludes positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, any of the following:
a) fast food or takeaway food services;
b) fast casual restaurants;
c) drinking establishments that offer only a limited food service;
d) limited service cafes including, but not limited to, coffee shops or mall cafes;
e) limited service pizza restaurants.
This excludes positions for a Café or Restaurant Manager in a limited service restaurant. The Tribunal took evidence from the applicant and heard submissions from the representative as to whether the applicant’s business, Coffee Alchemy in Marrickville is a limited service restaurant as defined in the caveat specified in Note 3 of IMMI 16/059 as amended by IMMI 17/040.
The evidence that has been provided to the Tribunal at review shows that the business sells coffee and coffee beans to the general public along with a range of coffee accessories. The business does not offer any food for service and only recently introduced water for sale. The business offers limited internal seating and external seating for customers. The Tribunal finds that the business is caught out by the application of the caveat on the basis that it does fall within the category of a limited service café, including, but not limited to, coffee shops and mall cafes. The business is engaged with providing its customers with a range of coffee blends and styles which may differentiate it from other cafes that sell coffee but this clearly occurs within the context of a limited service café environment. Based on the evidence, the Tribunal finds that the applicant is a limited service café and as such is included in a limited service restaurant in Note 3.
Note 3 of IMMI 16/059 as amended by IMMI 17/040 states that in relation to specifications of occupations for a Subclass 457 visa, and for the purposes of r.2.72(10)(aa), the specification excludes positions in a limited service restaurant. The Tribunal finds that the nomination does not comply with Note 3. The Tribunal finds that the nominated occupation and its corresponding 6-digit code do not correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph because Note 3 to IMMI 16/059 as amended by IMMI 17/040 excludes Café or Restaurant Manager positions in a limited service restaurant which includes limited service cafes. For this reason, the nomination does not meet the requirements prescribed in r.2.72(10)(aa), and therefore does not meet r.2.72(10).

For these reasons, the requirements of r.2.72(10)(aa) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets all 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.
John Cipolla
Senior Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)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.
(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 that:
(i)       are provided; or
(ii)      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 1875

29 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal