Rodferns Pty Ltd (Migration)

Rodferns Pty Ltd (Migration) [2020] AATA 341 (10 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Rodferns Pty Ltd
CASE NUMBER:  1701776
HOME AFFAIRS REFERENCE(S):          BCC2016/2820444
MEMBER:Antonio Dronjic
DATE:10 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 10 February 2020 at 11:12am
CATCHWORDS
MIGRATION – Nomination – genuine position – employment contract provided – statement of need provided – skills and abilities to perform job – nomination approved upon review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.57A, 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 Immigration and Border Protection on 17 January 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 25 August 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The applicant applied to the Tribunal on 20 February 2017 for review of the delegate’s decision. With its application, the applicant provided a copy of the primary decision record. The nominated occupation in the nomination application is Cook (ANZSCO 351411).
On 5 December 2019, the Tribunal sent a letter to the applicant which contained a request to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in r.2.72 of the Regulations. The request was made pursuant to s.359(2) of the Act.
On 19 December 2019, the applicant’s representative submitted the following:
·Submissions;
·A copy of the Australian Securities and Investments Commission (ASIC) extract for the sponsoring business;
·Financial statements for the year ending on 30 June 2018;
·A copy of the business activity statement (BAS) from October to December 2018 for Spicy Flavours Indian restaurant at Falcon;
·A copy of the BAS from July 2018 to September 2018 for Serpentine Rib and Steak House restaurant;
·A copy of the BAS from January 2019 to March 2019 for Spicy Pan restaurant;
·A copy of a profit and loss statement for Spicy Flavours Indian restaurant for the period from July 2018 to March 2019;
·A copy of the letter from Universal Taxation Services, the applicant’s accountants, dated 27 November 2019;
·Organisational chart listing the applicant’s employees and their occupation;
·Position description;
·A copy of a Spicy Flavours Indian restaurant menu;
·A copy of the employment agreement between the nominating business and the nominee signed on 17 December 2019;
·A copy of a job advertisement placed on Careerone by the sponsoring business on 25 September 2019;
·Evidence of the nominee’s English language proficiency;
·A copy of the Department’s SBS approval letter dated 3 November 2017;
·A copy of the agreement between Menulog Pty Ltd and Spicy Pan restaurant dated 18 January 2019; and
·A copy of the agreement between the sponsoring business and UberEATS dated 10 February 2019.
Mr Harminder Gill appeared on behalf of the sponsoring business before the Tribunal on 14 January 2020 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
Mr Gill stated in his evidence that he is the Managing Director and the sole shareholder of the sponsoring business. In addition to an annual salary of $55,000, Mr Gill took approximately $36,000 in profits during the past financial year. The legal entity (Rodferns Pty Ltd) was registered on 30 January 2014. Currently, the company operates two restaurants – Spicy Flavours Indian restaurant at Falcon WA, and Spicy Pan restaurant at Mandurah Ocean Marina, WA.
The sponsoring business initially operated Serpentine Rib and Steak House (closed in January 2019) and Spicy Flavours Bunbury (closed in mid-2017). The nominated position is needed for the ongoing operation of the Spicy Flavours Indian restaurant at Falcon which commenced trading in October 2015. The restaurant seats 74 customers and is open for dinner seven days per week. This restaurant currently employs one chef and one cook (the nominee) and is advertising for an additional position of a cook. Mr Gill undertook to provide copies of the recent advertisements.
The nominee (Ms Amritpal Kaur Gill) commenced her full-time employment at the Falcon restaurant in October 2019. Prior to this employment she worked for the sponsoring business at the Bunbury restaurant. Mr Gill stated that in March 2019, he advertised for the position of a cook at the Falcon restaurant but nobody responded. He then contacted the nominee and asked her to move to Falcon and offered her full-time employment. Mr Gill is not aware as to what the nominee was doing in Australia from mid-2017 to October 2019.
The nominee is currently paid an annual salary of $54,000. The other cook (Timsy) who works at Spicy Flavours Indian restaurant at Falcon is not an Australian citizen or permanent resident and is paid the same salary as the nominee. The applicant’s other restaurant (Spicy Pan restaurant) employs two cooks, one of whom is an Australian permanent resident. All cooks are paid the same annual salary of $54,000.
The Tribunal requested the additional documentary evidence to be provided by the applicant on or before 29 January 2020.
On 29 January 2020, the applicant’s representative submitted:
·Copies of the nominee’s recent payslips;
·A copy of the payroll activity statement from 1 July 2019 to 30 September 2019;
·Evidence of market salary – equivalent worker (Subin Lama);
·Revised employment agreement between the sponsoring business and the nominee dated 29 January 2020;
·Copies of the recent advertisements;
·Photos of the restaurant and kitchen – Attachment 6;
·A copy of the BAS from July to September 2018;
·A copy of the BAS from October to December 2018;
·A copy of the BAS from January to March 2019;
·A copy of the BAS from April to June 2019;
·A copy of the BAS from July to September 2019;
·A copy of the BAS from October to December 2019;
·A copy of the profit and loss statement from July 2018 to June 2019; and
·A copy of the profit and loss statement from July to December 2019.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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 r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied that the applicant company made the application in accordance with the approved form, and paid the prescribed fee, as it was at the time of application. The Tribunal is satisfied that this form identified the person proposed to work in the occupation, the ANZSCO code of the occupation and the location of the occupation.
On the basis of the Business Nomination Visa form the Tribunal is satisfied that the nominating employer has provided the necessary certification stated in r.2.72(10)(d) or (11)(b) (regarding tasks, qualifications and experience).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
On the basis of the Department records for Rodferns Pty Ltd, the Tribunal finds that the applicant was approved as a standard business sponsor for a five-year period commencing on 3 November 2017 and that this status remains in effect.
The Tribunal finds that r.2.72(4) is satisfied.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
On the basis of the information provided in the Business Nomination Visa form the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation and that she is a Subclass 457 visa applicant.
The Tribunal finds that r.2.72(5) is satisfied.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·The name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·If there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·The location(s) at which the nominated occupation is to be carried out.
The applicant stated in the nomination application form that the nominated occupation is cook and provided the corresponding ANZSCO code. The applicant has recently confirmed this information. During the course of the hearing, the applicant stated that the location at which the occupation is to be carried out is Falcon, WA 6210.
For these reasons the requirements of r.2.72(8A) are met
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal is satisfied that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an ‘associated person’.
For these reasons the Tribunal is satisfied that the requirements of r.2.72(9) are met.
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 the relevant instrument, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. 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 is satisfied that the applicant is a standard business sponsor and that the nominated occupation of a cook and corresponding ANZSCO code appear on the relevant list in the relevant instrument. The instrument does not require that the nomination be supported in writing by a specified organisation.
Based on the evidence before the Tribunal and in particular on the duty statement and current organisational chart of the sponsoring business, the Tribunal is satisfied that the nominee’s position predominantly involves the tasks of an occupation of a cook.
For these reasons the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in the relevant instrument: r.2.72(10AA). These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the relevant instrument: r.2.72(10AB).
In addition, r.2.72(10)(cc) requires that the base rate of pay under the terms and conditions of employment will be greater than the Temporary Skilled Migration Income Threshold (TSMIT) specified by the Minister in an instrument (although this may be waived if the circumstances in r.2.72(10A) exist). The current TSMIT for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028.
On the basis of the revised contract of employment dated 29 January 2020 which specifies a salary of $59,130 (excluding superannuation), which is under the threshold of $250,000, the Tribunal finds that the requirements in r.2.72 (1)(c) and r.2.72(10)(cc) apply in this case.
Based on the evidence before it, the Tribunal accepts that the sponsoring business, in addition to the nominee, employs one other cook who is an Australian permanent resident. This cook is paid the same annual wages as the nominee.
Both the nominee and the other cook undertake their duties in the same workplace and perform the significant majority of tasks of cooks as listed in the ANZSCO. Their functions and positions correspond to the ANZSCO occupational classification for cooks. In other words their positions or functions are equivalent and they are equivalent workers for the purposes of r.2.72.
Based on the evidence before it, and in particular financial statements, PAYG payment summaries and payslips provided with the review application, the Tribunal is satisfied that the proposed terms and conditions of employment for the nominated person are no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing equivalent work in the applicant’s workplace at the same location: r.2.72(10)(c) is therefore satisfied.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the TSMIT specified in the relevant instrument .
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the relevant instrument: r.2.72(10AB).
Both Mr Lama (the other cook who is an Australian permanent resident) and the nominee’s annual salary are greater than the current TSMIT. As the pay of $59,130 (excluding superannuation) for the nominated position exceeds the current TSMIT of $53,900, the Tribunal finds that r.2.72(10)(cc) is also satisfied.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·The tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;
·If the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·If the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant, or else is an occupation specified in the relevant instrument; and
·The qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.
The applicant has provided evidence to the Department and the Tribunal at review that the position includes the tasks of the nominated position of a cook listed in ANZSCO. The applicant is lawfully operating a business in Australia and the nominated position is within the company. Having regard to the occupational duties of the position the Tribunal finds that the position includes the majority of tasks of the nominated occupation as outlined in ANZSCO.

For these reasons the requirements of r.2.72(10)(e) are 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 has carefully considered the applicant’s evidence regarding the ongoing need for the position. Not all occupations are included as part of the nomination approval process. To maintain integrity of the nomination and visa process the Tribunal must consider whether the position can properly be described as that of a cook.
The Tribunal has had regard to the ANZSCO description of the occupation of a cook. While it is not bound by that description the Tribunal is satisfied that the position would involve the type of duties outlined in the ANZSCO.
The Tribunal has taken into account the evidence regarding the position description, the offer of employment, the organisational chart, and the statement of need provided by the applicant. Having had regard to the information provided in the application form, including the relevant certifications provided by the applicant, as well as the updated information given to the Tribunal regarding the role, the Tribunal is satisfied that the position associated with the nominated occupation is genuine.
The nominee has been working for the sponsoring business since October 2019. In his evidence, Mr Gill attested to the nominee’s skills and ability to perform her duties. He also gave a thorough account of the nominee’s role in the business.
Based on the above evidence, the Tribunal is satisfied that there is a genuine need for the position and the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The applicant has submitted to the Tribunal an employment contract for the nominee setting out the main terms and conditions of employment.
The Tribunal finds on the basis of the evidence before it that r.2.72(10)(h) is met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Antonio Dronjic
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 341

10 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies