Silvans Services Pty Ltd (Migration) - [2020] AATA 2123

Silvans Services Pty Ltd (Migration) [2020] AATA 2123 (12 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Silvans Services Pty Ltd
CASE NUMBER:  1728068
HOME AFFAIRS REFERENCE(S):          BCC2016/4321997
MEMBER:Karen Synon
DATE:12 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 12 February 2020 at 1:49pm

CATCHWORDS
MIGRATION – employer nomination – Facilities Manager – providing updated and current financial information – paid nomination training contribution charge – no less favourable terms and conditions – genuine position – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
MIBP v Singh [2016] FCAFC 83
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 24 October 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 21 December 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 because Regulation 2.72(10)(aa) because she was not satisfied that the caveats of the occupation were met.
A Callover was conducted on 25 July 2019 to discuss what evidence and information was required to satisfy Regulation 2.72. During the Callover an information sheet was discussed and provided which emphasised the necessity of providing undated and current information addressing all of the requirements in Regulation 2.72. Following the Callover a letter inviting additional information was issued inviting:
Information that demonstrates that Silvans Services Pty Ltd meets all of the requirements of the criteria in Regulation 2.72 of the Migration Regulations 1994 at the time of the Tribunal’s decision.
The applicant was provided with a copy of Regulation 2.72 and asked to have regard to the handout provided at the Callover when responding to this invitation. In response the applicant provided some but not all of the information that was invited and some of it was considerably out of date.
Mr Glenn Fernando, on behalf of the applicant appeared before the Tribunal on 9 January 2020 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. He did not attend the hearing.
At the commencement of the hearing the Tribunal asked why the applicant he had not provided an updated contract of employment or any financial information whatsoever about the company including audited statements or BAS quarterly reports. It had also made no submissions about the caveats applying to the occupation despite this being the issue on which the nomination was refused or any information about how the proposed salary was determined. The Tribunal noted that much of the evidence provided was the same as that provided to the Department in 2016. Mr Fernando said that he had given the information to the agent and the agent had not submitted it. The Tribunal noted that in fact the majority of the information that was provided to it appeared to have been provided by the nominee and from him not from the agent.
Mr Fernando outlined the history of the company saying he started it as a sole director in 2010 only as a cleaning company operating on a contractual basis. He and his wife each own 50% of the company. Between 2010 and 2013 he decided to start a facilities management company and in 2013 they started Silvan’s Facility Management which does not just manage cleaning also manages services such as security, ground keeping and maintenance issues. In all the company manages approximately 100 facility contracts throughout Australia cleaning approximately 40 in Victoria; 30 in New South Wales; 9 in Adelaide; and two in each of Brisbane and Tasmania. The company has satellite offices in each state and its head office is located in Victoria at 1/ 42 Global Drive Tullamarine where it operates a 1,400 square metre office and warehouse facility. The nominee is not related to him or his wife and has no ownership interest in the business. The company has over 150 direct employees and contracts approximately 20 subcontracting companies. Its turnover is now approximately $6 million a year.
The company employs another Facilities Manager in addition to the nominee: Gerry Ebel who is an Australian citizen. Mr Ebel is on a salary of $70,000 plus superannuation, with effect from 1 July 2019. The business has not employed or sponsored any other staff on a temporary or permanent basis and this is its first 457 nomination application. Lee Prosser was promoted to Operations Manager a month earlier. He is an Australian citizen.
Mr Fernando worked with the nominee from 2006 at ISS, before he started his company, where the nominee was a part time cleaning supervisor while he was on a student visa. Mr Fernando was the Operations Manager. Noting the nominee’s capacity and honesty, when he started the company, he asked the nominee to come and work with him as a part-time cleaner which he did for three years. In 2013 he promoted the nominee to a Facilities Service Supervisor, or a part-time basis, and his role was to look after the Kangan Institute’s facilities which included 13 buildings including one in Bendigo where the nominee was supervising both ground and cleaning staff. The nominee’s role now is that of a Facilities Manager which he commenced on a full-time basis in 2016. This involves direct reports of 50 staff and two site supervisors. He manages the Melton City Council’s contract valued at $2.7 million and also manages 20 other sites including the DHL Logistics site with a contract of $400,000 and a German company DB Shenker which is a contract of $600,000. The 150 operational staff is predominately cleaning and maintenance staff, security officers, gardeners, plumbers, electricians, ground maintenance and handy people.
During the hearing the Tribunal discussed with Mr Fernando a number of issues and concerns arising on the evidence before it. The Tribunal noted that despite the opportunity of a Callover when all the evidence that was required for a successful outcome was fully discussed, the information provided in response to the s.359(2) invitation was lacking in significant detail. The Tribunal discussed its concern about: the proposed salary level of the nominee; the proposed role of the nominee; and the demonstrated capacity of the company to employ the nominee in the absence of any financial information being provided. In particular; the Tribunal noted that the organisational chart provided lists the nominee as an Area Manager of which there are three and that there are nowhere near the 150 staff listed that Mr Fernando was claiming are direct employees. The applicant responded that this was done in 2016 and is out-dated and only senior employees are listed. The Tribunal also noted its concern about the salary of the nominee which the applicant had twice confirmed was to be $55,000 which would be $15,000 less the company pays another person working in the same occupation from the same location. The Tribunal further noted that independent salary information suggested that a Facilities Manager should be paid a higher salary than that being proposed.
The Tribunal also raises concern about the contract of employment dated 19 December 2016 that was provided and asked whether the company is still intended to rely on this and the salary. Mr Fernando responded yes. The Tribunal asked why the contract of employment refers to the nominee variously as an Operations Manager and an Operations Supervisor. The Tribunal, reading from the contract of employment stated “the operations supervisor shall be responsible for the daily management of cleaning on-site to contract specification and management of staff supervision”. Mr Fernando said no, the applicant is now a Facilities Manager and he would like to provide a new contract of employment. However after the Tribunal specifically raised his concerns about the low salary and the disparity between what is proposed to be two Facilities Managers, Mr Fernando changed evidence to say that back in 2016 he proposed to pay the nominee $55,000 but now he has gradually built up his skills and he is prepared to pay more. He confirmed that Lee Prosser is paid $90,000 and Gerry Ebel is paid 70,000. The Tribunal again emphasised its concern that he the company is proposing to pay the nominee significantly less than it will pay an Australian citizen performing the same work in the same location. Mr Fernando repeated that he is happy to pay the nominee more once he gets the visa. During the hearing the Tribunal noted its significant concerns when each time it raised an issue Mr Fernando changed his evidence. For example, he said twice that he would be paying the nominee $55,000 year but when the Tribunal raised the issue about the low salary and the fact that an Australian citizen would be paid $15,000 more for doing the same job, Mr Fernando changed his evidence to say he would pay the nominee more. In response to Fernando said he misunderstood about the salary and thought the Tribunal was asking him what he is paying now and will be happy to give the nominee $80,000 or 90,000 when he gets a permanent visa. The Tribunal said it was very clear in the language it used about the proposed salary. Mr Fernando said none of the staff will be staying in the same salaries; they will have increasing salaries with their experience.
The Tribunal asked Mr Fernando if he would like to highlight anything in the brochure that he had provided at the Callover. He explained several aspects and noted that the roles referred to as Client Service Manager are the Facilities Manager and said his company is growing.
Asked why the applicant did not provide any up-to-date financial information about the company Mr Fernando said he gave this to his office accountant who said he would give it to his representative. The Tribunal reminded the applicant that, as it had earlier advised him, the emails all originated from his email account.
Asked if he would like to make any comments about any of the issues raised in the primary decision Mr Fernando said not really; he just wants to employ the nominee because he is loyal and has been with the company since it started 10 years ago. After explaining the inapplicability condition which applies to this occupation the Tribunal invited Mr Fernando to comment on this. He said when they started the company it was based solely on commercial cleaning but after 2013 it became a facilities management company and the management positions look after the entire facility not just the cleaning services.
The Tribunal also discussed with the applicant the issues arising out of the section 359A letter that it had sent which detailed information about an allegation that the company illegally employed a person who was in fact sponsored by another company and that Silvan Services Pty Ltd had invoiced this company for the person’s payments for a period of three years. The Tribunal also noted that it had advised the applicant that a certificate had been placed on this information in accordance with section 375A. It noted that the applicant’s response to this letter was very poor and highlighted that where adverse information is held by the Department about a sponsor this could preclude the nomination being approved. Mr Fernando said he understood the person this information was referring but the company never employed him directly. He was an employee of a company which Silvers Services subcontracted to provide specialist services for high-rise floor-to-ceiling cleaning which required the use of specialist machinery. This included the stripping and sealing of flooring. The company subcontracted this work to ART Cleaning at a cost of $55,000-$60,000. The contract was to clean four sites for the Magistrates Court but they lost this contract approximately 6 to 8 months ago and no longer use ART Cleaning as they have found a better contractor. ART Cleaning still has a lot of contracts in Victoria. Invited to make any other comments about the 375A certificate or the information given under section 359A, Mr Fernando declined to do so.
At the conclusion of the hearing and with reluctance, given the considerable time the applicant had to provide updated and current information, and only on the basis of what he claimed to be his wife’s critical health condition, the Tribunal granted an additional period of time for updated and current evidence to be provided if he also provided medical evidence of his wife’s condition which would provide some explanation for why he was not able to provide the required evidence in the six month period he had. The Tribunal suggested that he have regard to the information sheet that was provided in the Callover him.
Following the hearing the applicant provided the following information:
·A new contract of employment and ‘employment promotion letter’ dated 30 January 2020 which contains a new job title of Facility Manager for Toll Australia Portfolio with a nominated salary of $90,000 per annum and superannuation of 9.5%.
·A job description a position description for the Facility Manager position.
·Financial information including: financial reports for the year ending 2018 which records income at $4,699,597 with a profit after expenses and $55,870; quarterly BAS statements for the period from October 2018 until March 2019; Commonwealth Bank statements for the period 14 November 2019 14 December 2019; and instalment activity statements for the period for January and February 2019.
·An ‘updated company hierarchy’ chart dated 2020 which lists the nominee as a facility manager and also lists Gerry Ebel as a facilities manager. Lee Prosser is listed as a Facility Operations Manager.
·A statement from Mr Fernando saying his wife, for privacy reasons is not prepared to provide a medical certificate.
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
Based on the evidence in the nomination application form and that provided directly to it, the Tribunal finds that the requirements of r.2.72(3) are met:
·The applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a);
·The nomination was made on the internet using the approved form and fee: r.2.73(2), (3), (5) & (9);
·The applicant identified the nominated visa applicant in the nomination: r.2.73(4A) and r.2.72(5);
·The nomination includes the location at which the occupation will be carried out, being 1/9 Lindaway Place, Tullamarine, 3043, Victoria,[1] and the name ‘Facilities Manager’ since the applicant is a standard business sponsor: r.2.73(4A).
[1] Although its head office subsequently relocated to 1/42 Global Drive, Tullamarine 3043, Victoria.
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. The Tribunal finds, based on the evidence provided that the person making the nomination is a standard business sponsor having been approved on 30 August 2016 with the period of approval ending on 30 August 2021. 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 the information provided in the nomination form, the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation.
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;
·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 instrument IMMI 17/060; 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 clearly identified in the application form that it was nominating a ‘Facilities Manager’ ANZSCO Code 149913 to work at the location 1/9 Lindaway Place, Tullamarine 3043, Victoria. 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.
Having reviewed the nomination application form the Tribunal is satisfied that this certification has been made and thus the applicant meets the requirements of r.2.72(8B).
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 adverse information known to Immigration about the applicant which is subject to a 375A certificate. The Tribunal disclosed the existence of the 375A certificate in a letter to the applicant dated 16 October 2019 and advised the applicant that it was its view that the certificate was validly made. It invited the applicant to make any submissions on the Tribunal’s view about the validity of the certificate but the applicant made no such submissions. However, in accordance with the Full Federal Court decision in MIBP v Singh [2016] FCAFC 83, the Tribunal is required to balance its obligations under s.375A with its obligations under s.359A of the Act, where possible to do so and accordingly determined to provide to the applicant a summary, or gist, of the potentially adverse information. It did this in a letter dated 16 October 2019 which the applicant responded to on 29 October 2019. The Tribunal also raised this issue during the hearing and gave the applicant an opportunity to provide a fuller response. Essentially the information relates to an allegation that the applicant illegally employed a person who was in fact sponsored by another company and that the applicant invoiced this other company for the person’s payments for a period of three years. In response the applicant contended that it has subcontracting relationships with up to 20 other companies and it subcontracted a company, ART Cleaning, to perform specialist cleaning for one of its contracts. After considering the applicant’s explanation the Tribunal has formed the view that it is reasonable to disregard the adverse information known to Immigration.

For these reasons 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 nominated occupation in this case is ‘Facilities Manager’ (ANZSCO code 149913). On 19 April 2017 and further on 1 July 2017 changes were made to the 457 program in respect of this occupation which is now subject to an ‘Inapplicability condition’ which means that the nomination of this occupation is now subject to an additional consideration or caveat. According to information provided by the department, the caveats are designed to ensure that in the context of this occupation, employer sponsored skilled visa programmes continue to be used for highly skilled and specialised positions that will make strategic contributions to the nominating organisation/business.
The occupation of ‘Facilities Manager’ is now subject to the following inapplicability condition:[2]

Note 14   The position
(a)   is not located in a commercial building or shopping centre environment; or
(b)   predominantly involves managing the provision of only one particular service to a facility or managing one particular relationship.
Example: Managing the cleaning contract for a facility but not the other contracts relevant to the facility.
[2] IMMI 17/060. Note 14.

The nomination was refused at the primary stage on this basis because the delegate was not satisfied that nominated position was available under the Subclass 457 programme due to restrictions on the occupation specified in the relevant legislative instrument because no independently verifiable information was supplied to support the claim that the sponsor provides a range of services including property services, waste management, pest control and hygiene services as well as commercial cleaning.
However on review the Tribunal is satisfied that the role of Facilities Manager which the nominee will undertake has a diverse range of responsibilities and includes the overall site management for a number of contracts extending beyond cleaning to ground maintenance, trade and handyman services and waste disposal. Therefore the Tribunal is satisfied that the inapplicability Condition 14 does not apply to this occupation and the requirements of r.2.72(10)(aa) are met. The instrument does not require that the nomination be supported in writing by a specified organisation and therefore 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.
The requirements of IMMI 09/113 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. The amount of earnings currently specified by the instrument is $250,000: r.2.72(10)(AB). As the nominee’s earnings are contracted to be $90,000 his annual earnings are not equal to or greater than that specified in IMMI 13/038.
The evidence before the Tribunal makes it clear that the review applicant already employs a Facilities Manager who is an Australian citizen whose annual salary is $70,000 plus superannuation.
As there is an Australian citizen permanent resident performing equivalent work of Facilities Manager at the same location the Tribunal does not need to consider the methodology specified in IMMI: 09/113.
Based on the evidence before it the Tribunal finds that the nominee’s proposed earnings are no less favourable than those that are currently being paid to a relevant Australian equivalent. 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 IMMI: 13/028.
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).
As previously noted the base rate of the nominee’s annual earnings is proposed to be $90,000 (exclusive of superannuation) and the base rate of pay provided to the Australian citizen mentioned in r.2.72(10)(c) is $70,000 (exclusive of superannuation) which is greater than the current TSMIT of $53,900. Therefore the Tribunal finds that r.2.72(10)(cc) is 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 instrument IMMI 13/067.
·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 IMMI 13/067 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.
Based on information before it, including in the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made and 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.
After speaking with the applicant about the Callover and hearing, and despite significant misgivings about the nature in which his evidence changed throughout the process, the Tribunal is nonetheless satisfied that the position associated with the nominated occupation is genuine. The position associated with the nominated occupation is located in a medium-sized, rapidly growing and successful company which now has a national profile with its head office in Victoria and branch offices throughout Australia. Its turnover, in the order of $6 million, suggests that the sponsor has the financial capacity to employ the nominee for the period of the 457 visa should be granted. Further there is nothing in the primary decision to suggest that there are concerns about the genuineness of this position. While the Tribunal has significant concerns about the way in which the applicant approached this review, which are which documented above, it is satisfied about the bona fides of both the sponsor and the nominated occupation.
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 a legislative instrument. No occupations are currently thus specified.
A revised contract of employment (titled Employment Promotion Letter) dated 30 January 2020 has been provided indicating a salary of $90,000 exclusive of superannuation which, read in conjunction with the contract of employment provided to the Department, sets out the main terms and conditions of employment.
Therefore 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). 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 applicant, these must have been met. 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.
However, in this case, the nominated occupation of ‘Facilities Manager ‘(ANZSCO Code 149913) is classified as Skill Level 2 in the ANZSCO dictionary. Skill level 2 designated occupations are exempt under IMMI: 13/137. Therefore evidence of labour market testing is not required.
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.
Karen Synon
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.