Suncoast Restaurants Pty Ltd (Migration)

Suncoast Restaurants Pty Ltd (Migration) [2019] AATA 6427 (8 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Suncoast Restaurants Pty Ltd
CASE NUMBER:  1800603
HOME AFFAIRS REFERENCE(S):          BCC2017/930893
MEMBER:K. Chapman
DATE:8 November 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 08 November 2019 at 5:14pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Cook – applicant highly experienced cook – labour market testing undertaken – suitably qualified and experienced Australian not available to fill position – financial capacity to sustain position – decision substituted – nomination approved – decision under review set aside

LEGISLATION
Fair Work Act 2009
Migration Act 1958 (Cth), ss 140GB, 245AR(1), 359(2)
Migration Regulations 1994 (Cth), rr 2.57A, 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 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, Suncoast Restaurants Pty Ltd T/A Augello’s, applied for approval on 9 March 2017. The applicant nominated Mr Ryoya Matsuda (‘the nominee’) in the occupation of Cook, which is coded as number 351411 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The commercial activities of the applicant encompass the operation of a boutique pasta and pizza restaurant.
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)(c) due to a lack of satisfaction 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. On 8 January 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.
On 7 August 2019, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response the Tribunal received material including, but not limited to, written submissions, market salary research, ASIC records, menu information, accountant’s letter, standard business sponsorship confirmation, position description, an organisational chart, floor plan, financial information, photographs, restaurant reviews, marketing information, an employment contract and taxation information. All submitted material has been duly considered by the Tribunal.
The applicant, through its director Mr William Moore, appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The Tribunal observed Mr Moore to provide his oral evidence in an open and detailed fashion. The Tribunal finds Mr Moore to be a most credible witness and high weight is accordingly afforded to his evidence. The Tribunal also received oral evidence from the nominee, Mr Ryoya Matsuda. The Tribunal finds that Mr Matsuda provided truthful and accurate oral evidence, which was consistent with that given by Mr Moore. The applicant was represented in relation to the review by its registered migration agent and the Tribunal notes that useful written submissions were provided by her.
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). In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The applicant lodged their application for nomination identifying the occupation of Cook (ANZSCO 351411) to be performed by Mr Ryoya Matsuda, who is an applicant for a Subclass 457 visa. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form identifying a location in the Sunshine Coast area where the occupation will be carried out and was accompanied by the prescribed fee. The Tribunal notes that the applicant made an innocent mistake regarding the question related to written certification concerning s.245AR(1) of the Act, because the question was answered in the negative to attempt to indicate they had not engaged in such conduct, rather than in the affirmative to certify that they ‘have not’ engaged in such conduct. This answer was corrected during the review process and accordingly the Tribunal is satisfied that the applicant has provided written certification indicating they have not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.
Additionally, the Tribunal notes that the applicant made an innocent mistake regarding the question related to whether the position has not been created solely to secure a migration outcome for the nominee, because the question was answered in the negative to attempt to indicate they had not engaged in such conduct, rather than in the affirmative to certify that the nominated position ‘has not’ been created solely to secure a migration outcome. This answer was corrected during the review process and accordingly the Tribunal is satisfied that the position has not been created to secure a migration outcome for the nominee.
Further, the Tribunal is satisfied that the applicant is a standard business sponsor and the nomination identifies the six digit ANZSCO code for an occupation contained in a legislative instrument as an approved occupation for the purpose of the Subclass 457 visa.
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 applicant submitted a copy of their Sponsorship Approval Notice confirming they are an approved standard business sponsor for the period 6 December 2016 to 6 December 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.
Having regard to the application for nomination and supporting documentary evidence, the Tribunal is satisfied that the applicant identified Mr Ryoya Matsuda as the visa applicant who will work in 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; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds that the applicant has identified the occupation of Cook (ANZSCO 351411) and a location in the Sunshine Coast area where it will be carried out.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
As previously outlined, the Tribunal accepts that an innocent error was made by the applicant when initially completing the application for nomination with respect to this certification and that the necessary certification was made during the review process. Therefore, the Tribunal is satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.
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 applicant nominated the occupation of Cook, which is coded as number 351411 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The aforementioned occupation has attached to it inapplicability conditions (or ‘caveats’) in accordance with instrument IMMI 17/060. They are:
· Item 7 – the position is involved in mass production in a factory setting; and
· Item 8 – the position is in a limited service restaurant.
The applicant, through its director Mr Moore, gave detailed oral evidence indicating that the business operates a full service restaurant in the Sunshine Coast region, which has received several culinary awards for excellence. He outlined the history of the restaurant, its focus on quality cuisine, the process for serving customers and the function of the commercial kitchen. Mr Moore explained that the restaurant employs predominately Australian citizen staff, in an environment where it is increasingly difficult to hire quality staff for the back of house (kitchen) roles. He advised that the restaurant hires a limited amount of visa holders to fill gaps that cannot be filled by the recruitment of domestic workers. Mr Moore explained the duties of the nominee in comprehensive detail and in a manner consistent with the ANZSCO description of the duties for the occupation of Cook. In particular, Mr Moore outlined that the nominee had prior cooking experience in Japan and has proven himself to be a valuable Cook in the fast paced kitchen operated by the applicant. Mr Moore advised that he pursued the review application in order to maintain the services of the nominee, whom he described as a high quality Cook. The nominee, Mr Matsuda, also provided oral evidence regarding his duties which was consistent with that of Mr Moore’s evidence.
The applicant submitted documentary material such as a position description, financial and taxation information, photographs, menu information, restaurant reviews, marketing information and an organisational chart which support the oral evidence of Mr Moore and the nominee. The Tribunal has also viewed the contents of the website of the applicant which is consistent with the submitted documentary and oral evidence. It is apparent to the Tribunal that the applicant has the financial capacity to sustain the nominated position and that this position is consistent with the size and scope of its commercial activity. Following careful consideration, the Tribunal is satisfied that the applicant conducts a professional, award winning, full service restaurant which gainfully employs a predominately Australian citizen work force.
The Tribunal finds that the submitted evidence clearly confirms the nominee is working in the occupation of Cook (ANZSCO 351411) in a full service restaurant which utilises a commercial kitchen. It is apparent that the nominee performs the full suite of duties associated with that of a Cook as defined in ANZSCO and is providing valuable service to his employer in this occupation. Further, the Tribunal is satisfied that the nominee possesses sufficient practical experience, gained in both Australia and Japan, to appropriately perform the nominated occupation.
The Tribunal has no hesitation in finding that the position associated with the nominated occupation is in fact that of a Cook (ANZSCO 351411) and that it is genuine. Following careful consideration of the evidence, the Tribunal accepts that at the time of this decision the nominated position is neither involved in mass production in a factory setting or in a limited service restaurant. Therefore, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition.
For the above reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA). The Tribunal accepts that, as outlined by Mr Moore, the nominee performs the role of Cook with a specialised skill set acquired from his prior experience in Japan and that there are no Australian citizens or permanent residents performing equivalent work at the same location as him.
The Tribunal notes that initially the applicant proposed an annual salary for the nominee of $48,000. However, the Tribunal accepts that the applicant subsequently conducted more thorough market research and, in combination with the demonstrated skill set of the nominee, decided to raise his annual salary to the amount of $54,600, which is reflected in his employment contract dated 20 December 2017. The Tribunal notes that the submitted PAYG payment summary of the nominee for the financial year 2017/2018 confirms that he received an annual salary from the applicant of $54,600.
The submitted market salary research confirms that the nominee is receiving appropriate remuneration in his occupation of Cook (ANZSCO 351411). Further, the Tribunal is satisfied that the nominee’s particular skill set justifies the raise in salary that he has obtained since the time the application for nomination was made. Mr Moore specifically advised, and the Tribunal accepts, that the applicant would equally remunerate an Australian citizen or permanent resident performing equivalent work at the same location.
Following careful consideration of the evidence, the Tribunal finds 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 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, which specifies the relevant amount as $53,900.00.
Following careful consideration of the evidence, the Tribunal is satisfied that the base rate of pay of the nominee is equal to that which would be provided to an Australian citizen or Australian permanent resident employee performing equivalent work at the same location. As the base rate of pay of the nominee is $54,600 per annum, it is greater than the current TSMIT. The Tribunal is therefore satisfied that r.2.72(10)(cc) is met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.
The applicant lawfully operates a business within Australia and the Tribunal is satisfied that it truthfully made the necessary certifications in the application for nomination.
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.

For reasons previously expressed, the Tribunal is satisfied that the nominee will perform the role of a Cook (ANZSCO 351411) as defined in ANZSCO and that he will not perform a lower level occupation. The Tribunal notes that the applicant has a long history of successfully operating its award winning restaurant. Following careful consideration of the evidence, the Tribunal is most satisfied that the nominee’s position is consistent with the size and scope of the applicant’s business, and that he is legitimately employed to fill a position that cannot be filled from the domestic labour market. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Cook (ANZSCO 351411) is genuine.
Therefore, the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The applicant submitted a copy of the most recent employment contract dated 20 December 2017 with respect to the nominee and the Tribunal is satisfied that he is employed pursuant to it.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). 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.
For these purposes, labour market testing 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.
The nominee, Mr Ryoya Matsuda, is a national of Japan. Ministerial Instrument LIN 18/183 provides that the labour market testing condition is inconsistent with the Japan-Australia Economic Partnership Agreement for the purposes of s.140GBA(1)(c). Accordingly, the labour market testing requirements in s.140GBA are not applicable.
For the sake of completeness, the Tribunal notes that the nominated occupation is Cook (ANZSCO 351411). This occupation is classified as Skill Level 3 in ANZSCO. Following careful consideration of the evidence, the Tribunal is satisfied that the applicant conducted labour market testing by way of advertising through the Seek website and was unable to secure the services of a suitably qualified and experienced domestic Cook through that process. The Tribunal is further satisfied that the nominee was employed on the strength of his experience as a Cook and that 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.
Accordingly, 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.
K. Chapman
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.

[2019] AATA 6427

8 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies