TASTE OF FIJI (Migration)

TASTE OF FIJI (Migration) [2017] AATA 450 (28 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  TASTE OF FIJI
CASE NUMBER:  1517440
DIBP REFERENCE(S):  BCC2015/1993365
MEMBER:Glen Cranwell
DATE:28 March 2017
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 28 March 2017 at 8:54am

CATCHWORDS
Migration – Nomination – Subclass 457 – Cook – Sponsor operates restaurant – Genuine position – Tasks match nominated position
LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, r 2.72, r 2.73, IMMI13/041

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 4 December 2015 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 11 July 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa).
The applicant appeared before the Tribunal on 24 March 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The 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 in this case is nominating on occupation under s.140GB(1)(b) and has identified an applicant for a Subclass 457 visa as the person who will work in the occupation for the purposes of r.2.73(1A). The Tribunal is satisfied that the nomination was made using the approved form and fee on the basis of information on the Department file relating to the application for the purposes of r.2.73(3),(5) and (9). The Tribunal is satisfied on the basis of the information provided in the application form that the applicant has identified the nominee in the application as Mrs Kiranjeet Kaur for the purposes of r.2.73(4A) and r.2.72(5), that the nomination includes the location at which the occupation will be carried out and the 6 digit ANZSCO code for the purposes of r.2.73(4A).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The Department’s ISCE database indicate that the applicant was approved as a standard business sponsor on 15 July 2015 for a term of 5 years, and that the approval is still current.
For these reasons the Tribunal is satisfied that the applicant is a standard business sponsor and 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.
The applicant has identified in the nomination application Mrs Kiranjeet Kaur as the applicant for a Subclass 457 visa 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. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have the specified level of English: r.2.72(10)(g).
Department records confirm that the nominee is not currently the holder of a Subclass 457 visa. 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.
For these reasons the requirements of r.2.72(10)(g) are met.
Information about the nominated occupation
Regulation 2.72(8A) requires for applications made on or after 1 July 2010, that the applicant 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 relevant instrument; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant stated in the nomination application form that the nominated occupation is Cook and provided the corresponding ANZSCO code of 351411. The location at which the occupation is to be carried out is also included in the nomination.
For these reasons the requirements of r.2.72(8A) 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 r.2.57(2) and (3).
There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an ‘associated person’.
For these reasons I am satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI13/041. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of Cook and corresponding code 351411 appear on the relevant list in the relevant instrument. The instrument does not require that the nomination be supported in writing by a specified organisation.
The Tribunal notes that the relevant instrument excludes Cook if the position is in a fast food or takeaway food service. The delegate’s decision contains the following guidance on this issue:
Positions located in Fast Food or Takeaway Food Service
The occupations of Cook, Chef and Cafe or Restaurant Manager are not eligible to be nominated for the subclass 457 programme if the position is in Fast Food or Takeaway Food Service.
Cafes and restaurants
Cafes and restaurants are mainly engaged in providing food and beverage serving services for consumption on the premises. Customers generally order and are served while seated (that is, waiter/waitress service) and pay after eating.
Takeaway food service outlets, Fast food outlets and Fast casual dining outlets
Takeaway food service outlets mainly engage in providing food services ready to be taken away for immediate consumption. Customers order or select items and pay before eating. Items are usually provided in takeaway containers or packaging. Food is either consumed on the premises in limited seating facilities or taken away by the customer or delivered. The ABS also includes businesses mainly engaged in supplying food services in food halls and food courts within this category.
Fast food outlets have relatively low cost, fixed menus with an emphasis on speedy service. Table service is not provided and customers consume their meals directly from the disposable containers it was served in.
Fast casual dining outlets are similar to fast food outlets except the quality and prices of the menu and premises may be somewhat higher. Table service before and during consumption of the meal is not usually a feature, and customers typically place their food orders at a counter. For the purposes of the Subclass 457 program, fast casual dining outlets are considered to be fast food businesses,
Under the subclass 457 program, fast casual dining outlets are considered to be fast food businesses.
Typically, these outlets:
·usually operate in chains or as franchises
·are heavily advertised
·offer limited menus
·offer speed, convenience, and familiarity to diners who may eat in the outlet or take their
·food home
·do not generally employ qualified chefs
·prepare food according to a standardised format for distribution from a central
·location
·serve food in a packaged form (although some outlets may provide cutlery and crockery for customers dining in the establishment)
·require customers to pay before eating
·do not offer table service before or during consumption of the meal
The applicant gave evidence that it operates an Indian restaurant. The restaurant has seating for 40 people. It employs 2 waiters. Dine in customers are seated at tables and offered menus before their orders are taken by the waiters. The food is served on crockery at the tables by the waiters. The customers pay at the end of the meal. The applicant told the Tribunal that it also operates a takeaway service. On a typical night, it might make $400-500 from dine in customers, and $200-300 from takeaway customers. The business is a standalone business and not a franchise.
Applying the delegate’s guidelines, it is clear to the Tribunal that the applicant operates an Indian restaurant, and not a fast food or takeaway service. Although the restaurant does offer takeaway, this is not the main focus of the business. The Tribunal notes that it would be hard pressed to find an Indian restaurant which did not also have a takeaway menu.
For these reasons the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment and base rate of pay
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.
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).
In addition, r.2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment will be greater than the Temporary Skilled Migration Income Threshold specified by the Minister in an instrument (although this may be waived if the circumstances in r.2.72(10A) exist). The current Temporary Skilled Migration Income Threshold (TSMIT) for the purposes of r.2.72(10)(cc) is $53,900: IMMI 115/050.
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 15/050: r.2.72(10)(AB). Annual earnings of $180,000 are currently specified.
The applicant provided the Tribunal with a contract of employment with specifies a base salary of $54,000. On the basis of the recently provided contract of employment, the Tribunal finds that the annual earnings of the nominee are below the relevant threshold and that the requirements of r.2.72(10)(c) and r.2.72(10)(cc) apply in this case.
The applicant claims that there are no Australian citizens or permanent residents performing the same work in the applicant’s business in the same location. The applicant has provided a number of advertisements for Cooks showing salaries of $53,900 and $54,000. The nominee’s salary is comparable to these advertisements.
On the basis of the evidence before it, the Tribunal accepts that the terms and conditions of employment of the nominee will be no less favourable that the terms and conditions that would be provided to an equivalent Australian employee and that r.2.72(10)(c)(ii) is met and that r.2.72(10)(c) is met on that basis.
The Tribunal is also satisfied that the base rate of pay that would be provided to an Australian equivalent employee is greater that the relevant TSMIT, and that r.2.72(10)(cc)(ii) is met and that r.2.72(10)(cc) is met on that basis.
For these reasons the requirements of r.2.72(10)(c) and r.2.72(10(cc) are met.
Requisite certification
Regulation 2.72(10)(e) requires that, if the nomination was made on or after 1 July 2010 and if the applicant is a standard business sponsor, the Tribunal must be satisfied that as part of the nomination, the applicant has provided the written certification referred to in r.2.72(10)(e). The certification relates to the tasks of the position, the nominated occupation and the skills and qualifications of the visa holder, or proposed visa holder.
The Tribunal is satisfied on the basis of the relevant certifications in the application form that r.2.72(10)(e) is met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Tribunal is satisfied that the position associated with the nominated occupation is genuine. The applicant operates a restaurant. It is trite to state that a restaurant requires a cook or chef. The applicant provided a letter to the Department indicating that the nominee has been working at the restaurant since 15 January 2015, initially as a trainee cook.
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 an instrument. No occupations are currently specified.
The applicant has submitted an employment contract for the nominee setting out the main terms and conditions of employment.
For these reasons the requirements of r.2.72(10)(h) are met.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, 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. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information of attempted recruitment, and includes details, fees and expenses of advertising for the position or similar positions, but may include other information such as the sponsor’s participation in relevant job and career expos, details of fees, expenses and results for recruitment attempts. A sponsor may also provide recent evidence about labour market trends, government support, or other evidence specified by the Minister. However, if this non-mandatory evidence and information is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The applicant provided the Department with evidence that it advertised on Gumtree on 30 June 2015. The applicant gave evidence that at the hearing that it received 7 applications, but none of these applicants were interested once they were aware that the restaurant was in a “country” location.
Based on this evidence, the Tribunal is satisfied that the nomination was accompanied by the evidence required by s.140GBA(5) and (6) that labour market testing was undertaken in the 12 months prior to the nomination being lodged as required: s.140GBA(3)(a) and (b) and IMMI 13/136.
The Tribunal has had regard to the evidence that the applicant was unable to find a suitable applicant for the occupation of Cook and is satisfied that no suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was readily available to fill the nominated position: s.140GBA(3)(d).
There is no evidence before the Tribunal that any Australians or permanent residents were made redundant or retrenched from the nominated occupation: s.140GBA(4A).
For these reasons, the labour market testing requirements in s.140GBA 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 these reasons the requirements of r.2.72(11) and (12) are not applicable.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Glen Cranwell
Member

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

[2017] AATA 450

28 March 2017

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice