Serhan Refrigeration Pty Ltd (Migration)

Serhan Refrigeration Pty Ltd (Migration) [2018] AATA 5308 (29 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Serhan Refrigeration Pty Ltd
CASE NUMBER:  1614262
HOME AFFAIRS REFERENCE(S):           BCC2016/1189871
MEMBER:Antonio Dronjic
DATE:29 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 29 October 2018 at 11:30am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Air-conditioning and Refrigeration Mechanic – genuine position – access to sub-contractors – qualifications of nominee – additional training and work experience required for nominee to obtain VBA licence – Labour Market Testing – poster advertisement for four months – sought potential employees by ‘word of mouth’ for five months – scope of the Tribunal's powers on review – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Re Drakeand Minister for Immigration and Ethnic Affairs (No 2) 1978 2 ALD 634
Vishnumolakakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209

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 2 September 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 18 March 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 nominated occupation is Air-conditioning and Refrigeration Mechanic, ANZSCO code 342111. The sponsoring business is Serhan Refrigeration Pty Ltd. The nominee, Mr Zoulfikar Serhan, is a brother of the sole director and sole shareholder of the sponsoring business, Mr Khaled Serhan.
The applicant applied to the Tribunal on 6 September 2016 for review of the delegate’s decision. With the review application, the applicant submitted a copy of the primary decision record.
On 15 February 2018, the Tribunal, differently constituted, sent a letter to the applicant which contained a request to the applicant 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 2 March 2018, the applicant’s representative submitted:
·A copy of the experience certificate as evidence that the nominee worked at Electro El Saj (business operating in North Lebanon) from 3 February 2012 to 27 February 2018 as a ‘Mechanic-man’. The letter further states that the nominee was trained on how to install and maintain air conditioners.
·A copy of the Professional Certificate issued on behalf of Union of Labourers from Homs Syria dated 4 January 2012 as evidence that the nominee is ‘practicing in the profession of air-conditioning fixing… for more than one year’;
·Bundle of Commonwealth Bank account statements for the sponsoring business dating from August 2017 to February 2018;
·Copy of the summary of domestic recruitment efforts by Serhan Refrigeration Pty Ltd, stating that one advertisement was placed on Gumtree in February 2018 and that a poster advertisement was placed in Glenroy, Victoria during the period of the last ‘few months’;
·Copy of the poster advertisement (illegible);
·Profit and Loss Statement for Serhan Refrigeration Pty Ltd for the 2016-2017 financial year;
·Copy of Business Activity Statements (BAS) for the period from July 2016 to September 2016 and April 2017 to June 2017’;
·Bundle of contracts and invoices rendered by Serhan Refrigeration Pty Ltd;
·A copy of the sample of an ‘Installation services Subcontractor Agreement’;
·Bundle of photographs depicting the business owner at work and the van used for mobile service and repair;
·A copy of Serhan Refrigeration Pty Ltd’s licence issued by the Department of Environment and Energy;
·Bundle of Activities Statements issued to Serhan Refrigeration Pty by GP Plumbing;
·A copy of a ‘Genuine position Statement’ dated 27 February 2018 submitted by Mr Khaled Serhan, stating inter alia that Serhan Refrigeration Pty Ltd was established in 2012; that the business operates from his home; that the company experienced a steady growth since its establishment; that the business retains services of subcontractors; that it urgently need a full time and reliable employee as the business provides 24 services; that the nominee, who is Mr Serhan’s brother, studied at the General Federation for the Syndicates of Labourers in Homs for one year and has experience in fixing and maintaining air-conditioning systems; that the business is offering the nominee an annual wage of $97,000 and that the position exist because of the need of the business for a skilled worker and not because of the relationship between the business owner and the nominee. Mr Serhan further stated that he and his brother worked together in the same industry for ‘many years’ prior to his arrival in Australia;
·A copy of the document headed ‘ Market Salary Rate Explanation’
·Copies of job advertisements for the position of Air-conditioning and Refrigeration Mechanic;
·A copy of the Job Outlook summary for the position of Air-conditioning and Refrigeration Mechanic; and
·A copy of the Pay Scale market rate summary for the position of Air-conditioning and Refrigeration Mechanic.
On 16 August 2018, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 11 October 2018.
On 4 September 2018, the applicant’s representative submitted:
·Commonwealth Bank account statements for the sponsoring business dating from September 2017 to September 2018; and
·A copy of the contract between Prime Builders and Serhan Refrigeration Pty Ltd dated 3 October 2018.
On 9 October 2018, the applicant’s representative submitted a copy of the Profit and Loss Statement for Serhan Refrigeration Pty Ltd for the 2017-2018 Financial year.
Mr Khaled Serhan appeared on behalf of the sponsoring business before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by its registered migration agent who attended the hearing.
When asked to confirm if he has the authority to represent the sponsoring business in these proceedings, Mr Serhan stated that he is the sole shareholder and the only director of the sponsoring business. He reiterated that the business was established in 2012 and is registered at his residential address. Mr Serhan is employed by the business and draws weekly wages. His annual salary was approximately $97,000. Mr Serhan is in charge of day to day business operations and is making decisions affecting the business operations including hiring and firing of employees and engagement of subcontractors. The business currently employs one apprentice who is earning $600 per week. The apprentice commenced his employment some four to five months ago.
Mr Serhan stated that he is a Victoria Building Authority (VBA) licenced Air-conditioning and Refrigeration Mechanic. He obtained his licence after working in Australia for more than three years and after completing a Certificate II course in air-conditioning and refrigeration. He has been holding this licence for more than five years now.
He confirmed in his evidence that the business lodged another business nomination application and that his brother Zoulfikar applied from offshore for a Subclass 457 visa on 1 March 2018. Both applications are still being processed by the Department.
He stated that the business is and has been using the services of various subcontractors if Mr Serhan is unable to do the jobs. Equally, at the times he does not have enough work, he works for other air-conditioning businesses as a subcontractor. He confirmed that this is a standard practice within the industry.
I expressed my concerns as to whether the nominated position may have been created to secure a migration outcome for Mr Serhan’s brother. I noted that the Subclass 457 program is designed to enable employers to address labour shortages by bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. I stated my understanding that he would like to bring his brother to Australia but a Subclass 457 program should not be used by businesses primarily to “create a position” in order to facilitate the entry, or stay, of the nominee to Australia. The business has been trading successfully for a period of some eight years by using subcontractors if Mr Serhan was unable to attend to jobs in person.
I enquired with Mr Serhan, noting that he makes decisions as to who is going to be employed at the business, why he would not consider employing any other person but his brother. According to his evidence, his brother never worked in Australia and would require additional training in order to obtain VBA licence.
Mr Serhan confirmed that he provided his Statutory Declaration dated 23 May 2016 to the Department where he stated that the business requires a person who is bilingual in English and Arabic languages. I enquired as to whether his brother can speak the English language. He stated that his brother can speak some English and is undertaking English language courses but he did not undertake any English language test.
I explained to the applicant the requirements of labour market testing (LMT) and the provision of s. 140GBA of the Act which requires a nomination to be ‘accompanied by’ evidence in relation to LMT where required. I further explained that the relevant legislative instrument requires that the sponsoring business undertake LMT within the 12 months. I observed that according to Departmental policy, which I am not bound to follow, the sponsoring business must undertake LMT within the 12 months before lodging the nomination application.
I noted that with the nomination application, the business submitted some evidence of LMT. I observed that, according to the summary of domestic recruitment efforts by Serhan Refrigeration Pty Ltd submitted with the nomination application, the business placed a poster advertisement in Glenroy for four months and sought potential employees by ‘word of mouth’ for a period of five months. Mr Serhan was presented a copy of the document submitted to the Department and he confirmed the above statement to be correct.
I further observed that a copy of the poster advertisement placed in Glenroy provided with the nomination application does not specify wages offered to potential applicants or describe terms and conditions of employment (such as whether the position is full time or part time). I noted that the poster advertisement contains the requirement that ‘appropriate certificates in refrigeration and air-conditioning are essential’ and I enquired as to what type of certificates he required the applicants to possess. He stated that he was looking for a fully qualified mechanic.
I enquired as to whether his brother would be able to obtain the same licence he has (VBA licence) based solely on his overseas work experience and education. I observed that in his evidence he stated that he was required to work in Australia for three years and undertake a Certificate II in refrigeration and air-conditioning before he could get a licence. Mr Serhan conceded that his brother would be required to work in Australia for some time before he could obtain this licence.
I further noted that, with the nomination application, the business provided a Department of Employment survey from September 2015 concerning the labour market trends in relation to the nominated occupation. I observed that the Departmental policy stated that such research must be released in the period of four months prior to lodgement of the application.
I expressed my concerns that the evidence of LMT provided with the nomination application is not adequate and that on the basis of this evidence I am not satisfied that a suitably qualified and experienced Australian citizen or Australian permanent resident was not readily available to fill the nominated position. I explained the reasons for my preliminary view that the sponsoring business has failed to undertake satisfactory LMT in relation to the nominated position within a period of 12 months before lodgement of the nomination application in March 2016.
The applicant’s representative requested and I granted him an additional seven days to provide further submissions and documentary evidence in support of the application.
On 18 October 2018, the applicant’s representative provided legal submissions stating that the Tribunal will be acting beyond its power conferred under s.43 of the (the AAT Act), if it fails to consider the decision of the Delegate and extends its consideration to other criteria such as LMT in accordance with s.140GBA of the Act because the delegate’s decision did not involve a number of components. Rather, the delegate only considered r. 2.72(10)(f). The delegate did not consider whether the applicant satisfied the criteria for LMT. It was submitted that the Tribunal may exercise the powers and discretions conferred by the relevant enactments, only for the purpose of reviewing the delegate’s decision, that is whether the applicant satisfies paragraph 2.72(10)(f).
In the alternative, it was submitted that the applicant satisfies the LMT criteria by considering the evidence of LMT provided at the time of nomination application and by having regard to the approach of other Tribunal members in determining whether s.140GBA is satisfied by the applicant.
The representative submitted that Mr Serhan gave evidence in relation to the genuineness of the position in a direct, unexaggerated and truthful manner. He confirmed that the position is vitally required to assist in the growth of the business citing lack and difficulty of access to sub-contractors as a major recurring hindering problem to growth within the business. He also confirmed that the relationship between the director of the nominator and the nominee should be viewed as a relationship of trust and confidence based solely on the expertise and experience of the nominee, rather than a familial relationship to facilitate a migration outcome.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
In considering whether the position associated with the nominated occupation is genuine, the Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3). As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan, J in Re Drakeand Minister for Immigration and Ethnic Affairs (No 2) 1978 2 ALD 634. Indeed, in Vishnumolakakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.
According to the Departmental policy, the Subclass 457 program is designed to enable employers to address labor shortages by bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to “create a position” – for example, in order to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available.
In the present case the nominee, Mr Zoulfikar Serhan, is a brother of a director and sole shareholder of the sponsoring business, Mr Khaled Serhan.
Mr Khaled Serhan has operated this business since 2012. He has a van and uses it to attend to the various work sites. The business is registered at his residential address and for the past six years he has been the only person drawing wages from the business, apart from the apprentice. The business is and has been using the services of various subcontractors if Mr Serhan is unable to do the jobs. Equally, at the times he does not have enough work, he works for other air-conditioning businesses as a subcontractor. He confirmed in his evidence that this is a standard practice within the industry. He provided to the Tribunal a sample of an Installation services Subcontractors Agreement used by his business.
Mr Serhan stated in his evidence that he holds a VBA licence for an Air-conditioning and Refrigeration Mechanic. He concedes in his evidence that his brother Zoulfikar would not be entitled to this licence until he obtains additional work experience in Australia and possibly undertakes further relevant studies. The nominee has never worked in Australia as an Air-conditioning and Refrigeration Mechanic and, as stated in Mr Serhan’s evidence, he is still learning the English language and has never undertaken any English language test. Despite this, the business is offering the nominee an annual salary of $97,000 that is, according to the submissions provided by the applicant’s representative (Tribunal folio 38) higher than most of the salaries offered to Air-conditioning and Refrigeration Mechanics in Victoria.
I have taken into account submissions provided by the applicant as well as documentary evidence submitted in support of the arguments that a position associated with the nominated occupation of Air-conditioning and Refrigeration Mechanic is a genuine position. I considered the evidence regarding the business’s turnover, the position description and the proposed employment agreement submitted to the Tribunal.

Based on the evidence before me I am satisfied that the main purpose of creating a position of an Air-conditioning and Refrigeration Mechanic within the business was to secure a migration outcome for the business owner’s brother, Mr Zoulfikar Serhan. I am not satisfied on the evidence before me that the business ever intended to employ alternative person (other than the nominee) as an Air-conditioning and Refrigeration Mechanic.
Based on the evidence before me, I am not satisfied that the applicant has need for a person undertaking the occupation of a Air-conditioning and Refrigeration Mechanic and I find that the position associated with the nominated occupation is not genuine. For these reasons the requirements of r.2.72(10)(f) are not met.
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.
For these purposes, LMT means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the LMT, the testing must be undertaken within a prescribed period as set out in the relevant instrument. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to LMT, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of LMT that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the LMT must have been undertaken after those events.
The issue of LMT was raised with the applicant during the course of the hearing. The applicant was provided with additional time after the hearing to provide further submissions concerning the LMT requirement.
With the nomination application, the applicant submitted summary of domestic recruitment efforts by Serhan Refrigeration Pty Ltd according to which the business placed a poster advertisement in Glenroy for four months and sought potential employees by ‘word of mouth’ for the period of five months. The applicant also provided a copy of the survey conducted by the Department of Employment from September 2015 concerning the labour market trends in relation to the nominated occupation.
The poster advertisement that was in Glenroy for a period of four months does not specify wages offered to potential applicants or describe terms and conditions of employment (such as whether the position is a full time or part time). As such, I do not consider this type of LMT to be a satisfactory way of testing of the Australian labour market. In addition, this LMT was placed for a period of four months only and as such it was not undertaken within a prescribed period as set out in the relevant instrument (12 months).
Apart from stating that the applicant sought potential employees by ‘word of mouth’ for the period of five months, the applicant did not provide any other details. In addition, this LMT was conducted during the period of five months only and as such it was not undertaken within a prescribed period as set out in the relevant instrument (12 months).
Finally, the survey concerning the labour market trends in relation to the nominated occupation conducted by the Department of Employment dates back to September 2015. According to the Departmental policy (the Tribunal is mindful that although it may be guided by policy, it is not bound to follow it) states that such a research must be released in the period of four months prior to lodgement of the application. In this case the application was lodged on 18 March 2016, which is more than four months after the research was released. The Tribunal finds no reason to depart from this policy.
At the hearing I had identified particular concerns with the circumstances before me as to whether I would be satisfied that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position.
I identified that the nomination and associated visa application was ‘self-sponsorship’, in the sense that Mr Khaled Serhan is the director of the applicant, and his brother, the nominee, is the associated visa applicant. I explained that in these circumstances, it was difficult to accept that the applicant would entertain employing a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder in preference to his own brother.
Based on the evidence before me, I am not satisfied that by placing posters advertisement in Glenroy for four months, seeking potential employees by ‘word of mouth’ for the period of five months and by providing a copy of the survey conducted by the Department of Employment in September 2015, the applicant demonstrated that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position.
I consider the evidence of LMT submitted with the nomination application insufficient to overcome the concerns I have as to LMT. I consider the evidence presented unpersuasive given the nature of my concerns in this regard.
I have confirmed through examination of applicable legislative instruments that the nomination is not exempt from the LMT obligations on the basis of major disaster, occupational or international trade obligation exemptions. Based on the evidence before me I am not satisfied that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position (s.140GBA(3)(d)). For these reasons, the labour market testing requirements in s.140GBA are not met and the application for approval of a nominated position must be refused.
Post hearing submissions
The applicant’s representative submitted that the Tribunal will be acting beyond its power conferred under s. 43 of the AAT Act, if it fails to consider the decision of the Delegate and extends its consideration to other criteria such as LMT in accordance with s.140GBA of the Act because the delegate’s decision did not involve a number of components. Rather, the delegate only considered r.2.72(10)(f). Essentially, the representative submitted that the Tribunal is confined to consideration of r.2.72(10(f) only because that was the reason why the delegate refused the nomination application.
I do not accept these submissions. There is nothing in the s.43 of the AAT Act that limits the Tribunal to consider only the reason why the delegate refused the nomination application (in this instance r.2.72 (10)(f) (non-genuine position). In order to have the nomination approved, the nominating business must satisfy all of the requirements of r.2.72 and not just r.2.72 (10)(f).
Pursuant to s.349(2)(d) of the Act, the Tribunal’s powers on review of Part 5-reviewable decisions include a power to set the decision aside and substitute a new decision.
Section 140GB of the Act prescribes in s.140GB(2) that
-2) The Minister must approve a person’s nomination if:
(a) in a case to which section 140GBA applies, unless the person is exempt under section 140GBB or 140GBC — the labour market testing condition under section 140GBA is satisfied; and
(aa) in a case in which the person is liable to pay nomination training contribution charge in relation to the nomination—the person has paid the charge; and
(ab) in any case—the person is an approved sponsor; and
(b) in any case — the prescribed criteria are satisfied…
The issue of LMT was clearly raised with the applicant at the hearing. The applicant was given the opportunity, both during the hearing and with an opportunity to provide post hearing submissions, to provide documentary evidence and legal submissions relevant to the LMT requirement, which the applicant did.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
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.

[2018] AATA 5308

29 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice