Southland International group Pty Ltd (Migration)

Southland International group Pty Ltd (Migration) [2018] AATA 5934 (15 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Southland International group Pty Ltd
CASE NUMBER:  1617611
DIBP REFERENCE(S):  BCC2016/1952185
MEMBER:Denise Connolly
DATE:15 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 15 June 2018 at 1:08pm

CATCHWORDS
MIGRATION – application for nomination of occupation – standard business sponsor – business’s activities, finances and future plans – genuineness, scope and duties of position – duties not consistent with ANZSCO description – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359(2)
Migration Regulations 1994 (Cth), r 2.72(10)(f), 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 October 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 5 June 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) because the delegate was not satisfied the position associated with the nominated occupation, Sales and Marketing Manager, is genuine.
Mr Yulong Cui appeared before the Tribunal on 24 April 2018, on behalf of the business, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dong Liu, Mr Cui’s business partner and director of the business. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.
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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
At the time of application the applicant stated that it runs the Orange Chinese Cultural Centre in Orange, NSW. It offers visitors cultural experiences, such as Chinese tea ceremonies, martial arts training, calligraphy workshops, a traditional Chinese dress photographic studio and Chinese artwork exhibitions. The business has stated that it needs a position, Sales and Marketing Manager (ANZSCO 131112). The owner and director of the business, Mr Yulong Cui, is also the nominee.
The duties and responsibilities set out in the nomination application are as follows:
a.determining market objectives, strategies, policies and programs for the company
b.directing customer relationship management
c.developing business and capturing plans to address local market
d.organising local events to promote the business
e.maximising the sales potential of the business by creating, implementing and managing strategic marketing initiatives which drive sales performance and lead to an increase in the market share
f.promoting Chinese culture and martial arts and local area.
The applicant has provided photographic evidence of the business, bank statements, reference letters and invoices demonstrating that the business is operating. The representative has provided a written submission stating that the business organises tour groups to visit Australia, including to regional areas. It is asserted the business needs the nominee to work in the nominated occupation Sales and Marketing Manager although it is acknowledged the actual position is difficult to categorise because it is unique. The representative provided copies of job advertisements for similar positions: sales manager/travel tour operator; events coordinator; and, business development manager. It is asserted the nominee will be directing the sales of tourism packages of Chinese cultural events to local residents and attend expos in capital cities to promote the business. He will be marketing the business in both China and Australia. Also the business has purchased vehicles to transport groups of visitors to local farms, orchards and wineries. At the time of application the business was run by two people, the nominee and Mr Dong Liu, an Australian citizen. As the business grows it will employ more people.
The applicant provided a contract of employment stating the nominee will be employed as a Sales and Marketing Manager on a base salary of $66,500 to work a 38 hour week and that from time to time the nominee will work in excess of 38 hours per week. The nominee will be paid superannuation in accordance with the legislation.
The duties and responsibilities set out in the contract are:
a.directing the development and implementation of sales strategies and setting sales targets
b.research and develop Chinese market and make business plan
c.keep organising visitors, investors, art performers group to visit Australia
d.establish martial arts classes in Orange, push traditional martial arts and tai chi to regional area.
The delegate considered the material provided and noted that the Subclass 457 program is to enable Australian businesses to temporarily fill short-term skill shortages with overseas workers when they cannot find a suitably qualified and experienced Australian citizen or permanent resident to fill the position. The delegate formed the view that the primary reason for the existence of the position is to facilitate the stay of the nominee in Australia rather than to fill a genuine vacancy or skill shortage. She was not satisfied on the evidence before her that the nomination was lodged to fill a genuine skill shortage. She formed the view that the nominated occupation was created to facilitate a migration outcome for the nominee. She was not satisfied that the position associated with the nominated occupation is genuine.
The applicant provided to the Tribunal information about the cultural centre which had been published by the Australian Broadcasting Corporation showing the shareholders of the business promoting tourism in regional New South Wales. Information was provided about the events that had been arranged since September 2017. The applicant also provided invoices, insurance documents, a financial statement for 2016, payslips, and documents and information about other businesses set up by the applicant, Château Du Chololat (a café) and Shangri-La Massage (a massage studio). The applicant provided further photographic evidence, letters of support and a written statement from Dong Liu claiming that the nominee, in working as a sales and marketing manager, established the Orange Chinese Culture Centre. He indicated that the nominee has since September 2017 organised 16 groups of 119 Chinese people to visit Australia and 70% of those tourists visited Orange. He arranged for them to live on farms, visit orchards and vineyards, fruit pick, shear sheep, milk cows, and taste wine and he has received very positive feedback. The business is now concentrating on an educational exchange program and the nominee has invited two groups from Jinan Agriculture College and a music training centre to visit Orange in November 2017 and January 2018. The business owners are now also running a café and a massage studio. They employ casual staff and have had a few businessmen in China who would like to invest in the business.
The representative provided a written submission explaining that Mr Dong Liu was employed by Electrolux at Orange until its closure. He was then interested to set up his own business and felt that a cultural exchange business was viable. The nominee had visited the area several times and developed friendships with local businesses and community groups. Both owners considered the potential of cultural exchange. It was intended to take groups of Australians to China to gain experience and understanding of Chinese culture. The nominee and Mr Liu have now established three businesses under the Southland International Group Pty Ltd. They conduct Chinese tea ceremonies and calligraphy lessons in aged care facilities and workshops at local schools to introduce martial arts and Chinese historical stories. The café currently employs Australian workers and is involved with a schools based leadership traineeship. The massage studio does not employ Australian workers but its employees are in Australia lawfully.
In response to a s.359(2) invitation the applicant provided a written submission addressing the requirements of r.2.72 which includes submissions as to why the position is genuine. It is asserted the nominee has expertise to develop a demand for the products of the business, targeting the market both locally and internationally. The representative explained that the business meets small groups of tourists at Australia’s international airports, usually Sydney, and takes them to locations of interest in the NSW Central West. She explained that the nominee first came to Australia from China in 1999 and attended the Orange Agriculture College. The nominee tests the level of public interest and determines pricing and product placement. He looks for new markets and performs product research including on the product strengths and weaknesses prior to introducing the product to the marketplace. This will include things such as sheep shearing, horse grooming and cow milking. She asserts that the business genuinely needs a position which corresponds significantly to the duties outlined in ANZSCO for Sales and Marketing Managers.
The applicant also provided information regarding job advertisements for the nominated occupation, and an organisational chart which indicates the 3 businesses are run by Mr Dong Liu (Director) and the nominee (as the Sales and Marketing Manager). Documents have been provided demonstrating that the businesses are operating.
The applicant provided a list of employees indicating there are 5 employees working at the café and 5 employees working at the massage studio. It appears from the list that only the director and the nominee work for the Orange Chinese Cultural Centre.
Before the hearing the applicant provided a BAS for the period January 2018 to 31 March 2018 indicating total sales of $43,799.
At the hearing the Tribunal discussed with Mr Yulong Cui (the applicant and the nominee) the requirements of r.2.72, the nature of the business, and in particular, the business’ needs for the position. The Tribunal explained that all of the relevant requirements of r.2.72 must be met before the nomination can be approved. The following is a summary of the evidence provided at the hearing.
The applicant explained that the business needs the position to work in tourism, targeting the Chinese market through contacts and friends. The position will organise tours, sometimes booking the flights and hotels. The position will encourage tourists to come to Orange. So far it has brought over 300 people in the last 2 years. It organises farm stays and visits to vineyards. It negotiates access to facilities and brings people from China to stay on the farms.
The position will also be involved in the Chinese cultural arm of the business. It will run calligraphy workshops and teach martial arts. It will run workshops in schools and aged care facilities. It currently teaches martial arts classes once a week. It also runs Chinese tea ceremonies from its studio and in aged care facilities, about twice a month, for the local Orange residents. The business has occasional art workshops in Chinese painting and dressing up in Chinese costumes. The position will conduct these activities.
The Tribunal asked the applicant about the position’s involvement in the massage studio. The applicant indicated the position will help look after this arm of the business. He helps at the front desk if they are busy. The nominee promotes the studio on Facebook. He is looking for Chinese investors to help increase the business. He sends out brochures and arranges ads to be placed in the local weekly newspaper. He talks to local hotels and motels about introducing clients to the business. He has contact with the local community encouraging the use of the studio by offering discounts. He trains staff in how to serve people.
The Tribunal asked about the position’s involvement in the café. The applicant indicated the position will talk to suppliers and find better coffee beans. He gives the business ideas such as adding waffles to the menu. He talks to other shops about what they sell and he talks to baristas.
The Tribunal asked if there was anything else the business needed the position to do. The applicant indicated the position will talk to people about what is on offer. He has contacts in China who trust him. As the manager of the business he wants to promote it and increase its business and profit.
The applicant confirmed that he, as the nominee working in the position, has direct contact with the tourists the business brings to Australia. If they have any problems while in Australia they call him. He sometimes picks them up from the airport, about twice a month. This will increase as the business grows. He acknowledged the position has regular direct customer contact.
The Tribunal raised explained the caveats on occupations as set out in IMMI 17/060. It explained that the nominated occupation is subject to caveats including item 11 which states that the position is inapplicable if it is based in frontline retail setting or predominantly involves direct client transactional interaction on a regular basis. It explained it may form the view that the position does involve direct client transactional interaction on regular basis, and it may find the occupation is inapplicable. The applicant acknowledged that the position does have a lot of direct contact with customers. He indicated that local travel groups refer people to him. They then return to China and refer their friends to him.
The Tribunal raised its concern that the position may be that of a tour guide rather than a Sales and Marketing Manager. The applicant acknowledged that the position does act as a tour guide to some extent. When the business started, he and Mr Liu did not have experience of tourism in Australia but he had it in China. So he is now able to train staff in the future. The current business is limited but it has been growing. Sometimes the business hires a professional guide to serve the tour group. The position however organises the activities, for example to the Opera House, but it gets a professional tour guide to take the tour group on the tour. He stays with the group to make sure everything is runs well.
The Tribunal discussed with the applicant the ANZSCO description for the occupation and explained its relevance indicating it may not be satisfied the position needed by the business is an Sales and Marketing Manager. The applicant indicated the business has targets and he and Mr Liu decide how to develop the business. For example he suggests a tour package. Chinese tour groups normally go to Sydney, Melbourne and Cairns. He wants to provide them with a different experience, a farm stay. He has a local friend, a lecturer, who has the business’ clients stay on his farm.
The Tribunal asked the applicant if he had any other evidence to give as to why it should be satisfied that the position associated with the nominated occupation is genuine. The applicant indicated he has a lot of ideas for the business. He wants to promote new opportunities for Chinese visitors. He talks to people about his ideas and promotes the business with pictures. The applicant also has clients in China who he advises about investment opportunities in Australia. For example he knows Chinese people who want to import wine. The business has a licence to export wine to Chinese. It has exported 254 bottles. The Chinese have money but do not want to spend it in China. They ask him about buying hotels, farms etc in Australia. He discusses potential investments and gives advice. He charges them a fee.
The Tribunal then discussed the other requirements of r.2.72. The applicant indicated the standard business sponsorship has recently been approved. The Tribunal asked if the business has been paying him, as the nominee, $66,500 per year, as specified in the contract. He indicated he is not yet being paid in accordance with the contract because he has been putting money back into the business. When determining how much the position should be paid, he and Mr Liu found information online and discussed how much they could afford. The applicant indicated Mr Liu had told him he was losing his job at Electrolux and they discussed potential business opportunities. They decided to set up this business. However Mr Liu is not paid a salary and relies on his wife’s income. Mr Liu sometimes does some driving for the business and he does some work for a local IT company.
When asked if there was anything else the applicant wished for the Tribunal to take into account, he indicated he was not sure which position to nominate. He decided the business needs a Sales and Marketing Manager to promote and sell. He is in the general manager position. Two years ago the business made no profit. However it is growing and the turnover last year was $130,000.
The Tribunal took evidence from Mr Liu who indicated he runs the business with the nominee but the nominee is in charge of tourism. He and the nominee bought the café and the massage studio and Mr Liu is primarily responsible for those businesses. The business needs the nominee because he has expertise in Chinese tourism.
The Tribunal asked the applicant to provide further evidence of its financial circumstances as it needed to be satisfied the business has the financial capacity to employ the nominee and pay the base salary and superannuation provided in the contract. It asked if it could see view activity statements from ATO’s portal and bank statements.
After the hearing the applicant, who is also the nominee, provided his personal bank statements, insurance documentation and several BAS for the period April 2016 to March 2018 indicating quarterly sales from $6664 to $57,485. The applicant also provided evidence that the Department approved the applicant as a SBS on 6 April 2018 to 6 April 2023.
The Tribunal has also had regard to the ANZSCO description for the nominated occupation. While it is not bound by this description it considers it a useful tool in identifying typical tasks undertaken by the occupation, and the level of complexity of the occupation’s tasks. The occupation falls in the ANZSCO Unit Group 1311 Advertising, Public Relations and Sales Managers. It states in part as follows:
UNIT GROUP 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS

ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
odirecting the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty
odirecting the development and implementation of strategies to promote an organisation's goods and services to as many people as possible
odirecting the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'
odirecting the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

Occupations:
131112 Sales and Marketing Manager
131113 Advertising Manager
131114 Public Relations Manager

131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level 1
ASSESSMENT OF THE EVIDENCE
Nominator is a standard business sponsor or party to a work agreement

Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
On the basis of the Department’s notice dated 6 April 2018 the Tribunal is satisfied the applicant is an approved standard business sponsor until April 2023. Accordingly the requirements of r.2.72(4) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The delegate was not satisfied the position associated with the nominate occupation is genuine because the delegate was of the view the position had been created merely to facilitate a favourable migration outcome for the nominee. The Tribunal is of the view self-sponsorship of itself does not prohibit the approval of a nomination. However, for the following reasons, the Tribunal has concerns about whether the position the business requires is a Sales and Marketing Manager.
In the nomination application the applicant indicated the business’ purpose is to promote Chinese culture and martial arts in the local area. The written submissions indicated this would be done through the Orange Chinese Cultural Centre by providing tea ceremonies, martial arts training, calligraphy workshops and Chinese costume dressing. Since then the business has grown and it now runs a café and a massage studio. The applicant’s oral evidence indicates a significant arm of the business is its tourism work. It is submitted the business needs the nominee because of his expertise in tourism. The applicant also indicated the position provides advice to prospective Chinese investors.
Having considered the ANZSCO description of the nominated occupation the Tribunal is of the view a Sales and Marketing Manager plays a strategic role in planning, organising, directing, controlling and coordinating the sales and marketing activities within a business. The description does not indicate the occupation actually undertakes the activities. It is a Skill Level 1 occupation, commensurate with a bachelor degree or higher qualification, or at least 5 years’ relevant work experience.
The Tribunal has considered the written submissions provided at the time of application about the position’s duties which indicate the position will determine market objectives, strategies, policies and programs, manage customer relationships, develop the business, organise local events to promote the business and create, implement and manage marketing initiatives to drive sales performance and increase in the market share. The Tribunal accepts the position will perform those duties to some extent, from time to time. However in subsequent written submissions and in the oral evidence it was made clear that the position will be directly involved in the conduct of Chinese tea ceremonies and calligraphy lessons and that it teaches the martial arts classes. The applicant’s oral evidence indicates the business also needs the position to organise tours, sometimes booking the flights and hotels, and organise farm stays and visits to vineyards. The position negotiates access to those facilities and brings people from China to stay on the farms. It sometimes picks up the tour group at the airport. Having regard to the ANZSCO definition for the nominated occupation the Tribunal is not satisfied the position’s duties in making arrangements for tour groups, collecting groups from the airport and organising farm stays and vineyard visits are consistent with those of a Sales and Marketing Manager.
While the Tribunal accepts the position might be involved in the promotion of the massage studio by sending out brochures, arranging advertisements in a local newspaper, promoting it on Facebook and talking to the local community, the Tribunal notes the position also helps at the front desk when the studio is busy. The Tribunal also notes the position talks to the café’s suppliers, locates coffee beans and makes menu suggestions. The Tribunal is not satisfied the help in the massage studio and training staff in customer service, and the involvement in the café are indicative of the duties of a Sales and Marketing Manager as it is described in ANZSCO.
The Tribunal is of the view the nominee’s direct contact with the tourists is not consistent with the duties of a Sales and Marketing Manager. Having regard to the ANZSCO description the Tribunal considers it to be a strategic role, involved in directing other staff to implement sales and marketing strategies. While the Tribunal accepts the nominee in this position has had involvement in developing sales and marketing ideas, because the business is so small it also requires the nominee to undertake the actual work. This is reflected in his evidence that he updates the business’ Facebook page, arranges advertisements, talks to hotels and motels, and distributes brochures. The Tribunal is also not satisfied the nominee’s role in exporting wine and advising prospective Chinese investors are duties undertaken by a Sales and Marketing Manager.
The Tribunal accepts the applicant wishes to grow the business and provide new experiences and travel opportunities for local residents around the Orange area and international visitors. It accepts he has developed ideas as to how the business can achieve this. The Tribunal notes the position will attend tourism expos from time to time. However given the business is so small, it is of the view, in the foreseeable future, the business needs the position to undertake various duties and tasks that are not consistent with those of a Sales and Marketing Manager as it is described in ANZSCO. Nor is it satisfied that many of the duties of the position, such as accompanying the tour group, conducting tea ceremonies, calligraphy and martial arts classes, helping at the massage studio, and the work the nominee will do at the café, will be at the skill level of a Sales and Marketing Manager (Skill Level 1).
The Tribunal has considered all of the evidence before it. It accepts that the applicant wishes to grow the business and employ more staff. It accepts that he is striving to meet sales targets and increase profit. It also accepts he works hard at promoting the business by word of mouth, by referral and through friends and associates, locally and in China. However overall the Tribunal is not satisfied the bulk of the duties of the position are, in the main, those of a Sales and Marketing Manager. The Tribunal is not satisfied the position the business needs is that of a Sales and Marketing Manager. Accordingly the Tribunal is not satisfied the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
As the applicant has not met a mandatory criterion of r.2.72 it is not necessary for the Tribunal to make findings about the other requirements.
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.
Denise Connolly
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(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 5934

15 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction