Rom Enterprises (NSW) Pty Ltd (Migration)

Rom Enterprises (NSW) Pty Ltd (Migration) [2018] AATA 3897 (13 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Rom Enterprises (NSW) Pty Ltd
CASE NUMBER:  1608807
DIBP REFERENCE(S):  BCC2015/3797065
MEMBER:Catherine Carney-Orsborn
DATE:13 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 13 August 2018 at 3:56pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – genuine position – contract of employment – job vacancy advertisements – approved business sponsor – annual salary exceeds base rate – certification provided – growing business – exempt of labour market testing – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 245AR
Migration Regulations 1994 (Cth), rr 2.72, 2.73, 2.57A
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 31 May 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 10 December 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) because they were not satisfied that the position associated with the nominated occupation is genuine.
The director of the applicant company appeared before the Tribunal on 4 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.
The applicant was represented in relation to the review by its registered migration agent.
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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The Tribunal has before it the information and evidence held on the Tribunal and Departments’ files.
The Tribunal took evidence from the sponsor and nominee.
The sponsor identified himself as the Managing Director of the nominating company. He explained how the company operated and indicated it was in the business of logistics and Distribution. He indicated he is the director of several companies including QSR fresh. He described the business plan which involved suppling quick service restaurants and the distribution of goods. He named the companies major clients. He started his business in 2004 however it has expanded. The company distributes for large clubs and fast food companies. He is currently looking to expand in New Zealand.
He went through the role of the nominee. He explained that he has a small number of employees however a large number of contractors. His drivers and warehouse workers are contractors.
The Tribunal queried him about the previous role of customer service manager that the nominee had been sponsored to fill. He stated that the role of customer service manager is currently taken by another long-term employee. He had sponsored that employee some years ago and that employee is now a permanent resident and still works for the sponsor/company.
He went through the detail of why those jobs are different. He explained the role of the nominee. He said he is responsible for all dealings with his main clients and makes sure all the products are the proper quality that they have contracted to receive. He deals with any changes that need to be made to the contracts and reports back to the director.
He explained that because it is a fresh food business everything has to be done in a meticulous manner. He is audited regularly and needs to ensure that everything complies with the relevant regulations.
The nominee has to liaise and connect with clients to ensure that all aspects of the contract of supply are properly completed. He explained that the nominee has been one of his best employees. He ensures that the clients are never short of whatever they required and the sponsor is contracted to provide. He states that because his company is in the food industry he has to have complete trust in his employee.
The sponsor said that he has come along to support the nominee as he is an excellent employee who works hard and deserves to be recognised.
The sponsor explained that the quality of his product is important and the nominee is the only employee that has been able to maintain the appropriate supply lines.
He explained how the nominee gets the business and assists the clients. He also advises the sponsor on the things that need to be done to ensure the company complies with the contracts.
The sponsor said that the nominee first came to Australia on a student visa. Since his student visa has expired he has been on bridging visas. He has been working full-time for the sponsor since about 2015.
The sponsor said the nominee ensure that the clients get what is promised in the contract. He does not have the authority to alter the contract however he will advise the sponsor on any aspects that may need to be re-negotiated or altered.
He said the nominee is a very good worker and knows the business well. He reiterated that he is crucial to the supply chain and his business would suffer without his expertise.
The nominee gave evidence he confirmed the evidence of the sponsor. He first came to Australia on a student visa. He started working part-time for the sponsor in 2014. He studied management and hospitality.
The Tribunal asked the nominee to go through in some detail what tasks he undertakes. He did this and his evidence was consistent with the sponsor.
He indicated he ensured that customers received the services they were contracted to receive. He followed the proper procedures. He negotiated with clients and advised the Managers. He said that if he identifies a problem he advises the manager and suggests how to deal with the problem.
The sponsor provided evidence that he was an approved sponsor. He also provided evidence in relation to his English test. The Tribunal too the sponsor and nominee through the required regulation.
The agent requested further time to provide financial documents and other material. The Tribunal allowed seven days to provide that information.
After the hearing the sponsor supplied copies of the companies integrated client account obtained from the ATO portal, lodged BAS statements, financial accounts for the year ending June 2017, company tax returns for year ending June 2017, evidence of superannuation paid to the nominee, group certificates for year ending June 2017.
The Tribunal has considered all the above documents and evidence.
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 applicant is nominating the occupation of Contract Administrator, ANZSCO 511111, which is an occupation under s.140GB(1)(b): r.2.73(1A)(a). The applicant has identified in the nomination Mr Singh , an applicant for a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b). The Departments’ records confirm that the nomination was made online using the approved form (internet) and the prescribed fee has been paid; r.2.73(2), (3), (5) & (9). The applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5). The nomination includes the location, Prospect NSW 2178, at which the occupation will be carried out, and the name and 6 digit ANZSCO code: r.2.73(4)/(4A).
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.
Information before the Tribunal indicates that the applicant was approved as a standard business sponsor for a five year period commencing 24 April 2018. That sponsorship remains in force and the Tribunal is satisfied that the applicant, at the time of this decision, is a standard business sponsor.
For these reasons the requirements of r.2.72(4) are met.
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 information on the nomination application the Tribunal is satisfied that the applicant has identified Mr Singh as the person to undertake the nominated occupation and that Mr Singh has applied for Subclass 457 visa.
For these reasons the requirements of r.2.72(5) are met.
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;
·the location(s) at which the nominated occupation is to be carried out.
On the basis of information provided in the application, the Tribunal is satisfied that the applicant provided the name of the occupation, Contract Administrator, the relevant 6 digit ANZSCO code and specified the location for the position at which the nominated occupation is to be carried out.
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 applicant provided the required certification as part of the nomination.
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 nothing before the Tribunal which indicates there is any adverse information of the type described above known to the Department about either the applicant or an ‘associated person’.
Given the above, the Tribunal finds that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 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 instrument IMMI 17/060, 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 Contract Administrator and corresponding code 511111 appear on the relevant list in the relevant instrument. The instrument does not require the nomination to be supported in writing by a specified organisation. The occupation is one in which there is an inapplicability condition attached. That condition is item 1 “The position does not require a minimum of 2 years relevant work experience”. The position requires at least three years relevant work experience. Therefore the Tribunal is satisfied that the occupation is not inapplicable.
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 instrument IMMI 09/113: 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 written instrument IMMI 13/028: r.2.72(10)(AB).
The contract of employment, which sets out the terms and conditions of employment, indicates that the nominee’s base salary will be $55,000.00 plus superannuation.
The organisational chart provided indicates that the position of Contracts Administrator is currently held by the nominee. As there is no Australian employee performing the same role as the nominee at the same location, the Tribunal has had regard to the methodology specified in IMMI 09/113 in assessing whether the applicant has determined the terms and conditions of employment that would otherwise be provided in accordance with the methodology set out in that instrument.
There is no evidence before the Tribunal to indicate that there is a fair work instrument, state industrial instrument or transitional instrument that would apply to an Australian performing the role of Contracts Administrator. The applicant can therefore rely on the inclusive examples of ‘relevant information’ listed in the instrument, such as remuneration surveys and job vacancy advertisements to determine what would be payable to an Australian performing an equivalent role. The Tribunal has considered various job vacancy advertisements from seek.com for the occupation of Contracts Administrator, all provided by the applicant for similar roles indicating a base salary is $50,000 - $60,000.
The Tribunal has had regard to those job vacancy advertisements and the terms and conditions of employment, as set out in the contract of employment, and is satisfied that the terms and conditions of employment for the nominee are no less favourable than those which would be provided to an Australian performing equivalent work in the same workplace.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI13/028 which is currently $53,900
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).
The nominee’s base salary will be $55,000. As this amount exceeds the TSMIT, which is currently specified as $53,900, the Tribunal is satisfied that the requirements of r.2.72(10)(cc) are met.
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).
The certification relates to the tasks of the position, the nominated occupation and the skills and qualifications of the visa holder, or proposed visa holder.
The applicant has made the relevant certifications in the nomination application, and on this basis the Tribunal is satisfied that 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.
The applicant has provided a large amount of evidence to the Tribunal which was not provided to the Department. The Tribunal has considered all that evidence.
The Tribunal also took detailed evidence from the Director and owner of the Applicant Company and nominee.
The evidence was taken independently of each other and the Tribunal tested their evidence against each other. The evidence was consistent and corroborative of each other and the financial documents.
At hearing the nominee was able to give confident evidence in relation to the business and his role in the business. The Tribunal accepts that he has worked for the business since 2013 and has been promoted. He could outline the tasks he was to perform and the responsibilities of his position.
Overall, the Tribunal is satisfied that the applicant’s business is growing and it accepts the applicant’s evidence that they need an experienced person to take the role of Contract Administrator which is critical to its expansion. The Tribunal acknowledges that the occupation falls within the Major Group 5 Clerical and Administrative Workers in ANZSCO, and that Contract Administrators tasks include
odeveloping, reviewing and negotiating variations to contracts, programs, projects and services
oresponding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
omanaging paperwork associated with contracts, programs, projects and services provided
oworking with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
oadvising senior management on matters requiring attention and implementing their decisions
ooverseeing work by contractors and reporting on variations to work orders
opreparing and reviewing submissions and reports concerning the organisation's activities
ocollecting and analysing data associated with projects undertaken, and reporting on project outcomes
oreviewing and arranging new office accommodation

While these tasks not necessarily of a complex nature they are crucial to the effective running of a growing business. The Tribunal is satisfied after taking into account the evidence provided both oral and documentary, including his academic qualifications and the nominee’s work experience over the period since 2013 satisfies the requirements as described in ANZSCO.
Having regard to the tasks typically included in the occupation Contracts Administrator as described in ANZSCO and the duties of the nominated position, particularly in the context of the nature and operations of the business, the Tribunal is satisfied that the tasks of the position are consistent with that of the occupation Contract Administrator. The Tribunal is accordingly satisfied that the position associated with the nominated occupation of Contracts Administrator is genuine.
For these reasons 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 instrument for the purposes of this regulation.
A copy of the contract of employment which set out the terms and conditions of employment was provided to the Tribunal. For these reasons the requirements of r.2.72(10)(h) are 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). The applicant is not a party to a work agreement, and for this reason the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
In this case, the nominated occupation is Contract Administrator, ANZSCO 511111. This occupation is classified as Skill Level 2 in ANZSCO. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In the circumstances, the skill and occupation exemption to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the requirement in s.140GBA.
For these reasons the requirements of s.140GBA 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.
Catherine Carney-Orsborn
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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2018] AATA 3897

13 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies