THE HMK FAMILY TRUST (Migration)

THE HMK FAMILY TRUST (Migration) [2017] AATA 706 (4 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  THE HMK FAMILY TRUST
CASE NUMBER:  1604760
DIBP REFERENCE(S):  BCC2015/3980446
MEMBER:Antonio Dronjic
DATE:4 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 04 May 2017 at 11:38am

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) visa applicant – Terms and conditions of employment no less favourable – Cook – Labour market testing requirements met

LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140GB, 140GBA, 245AR, 359(2), 360(2)(a)
Migration Regulations 1994, r 1.13A, r 1.13B, r 2.57(3A), r 2.57A, r 2.72, r 2.73, Schedule 2, cl 457.223
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 22 March 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 21 December 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(c) because the delegate was not satisfied 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.
The applicant applied to the tribunal on 7 April 2016 for review of the delegate’s decisions. With its application, the applicant provided a copy of the primary decision record. The nominated occupation in the nomination application is Cook (ANZSCO 351411).
On 10 February 2017, the tribunal sent a letter to the applicant which contained a request to the applicant to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in regulation 2.72 of the Migration Regulations. The request was made pursuant to section 359(2) of the Act.
On 24 February 2017, the applicant’s authorised person submitted the following documents:
·Submissions stating that the sponsoring business currently employs two cooks; that the position being offered to the nominee is a core position to the functioning of the sponsoring business and has become genuinely available as the business experienced considerable business growth; that the nominee has already been working as a cook and has been identified as the most suitable for the position after the business advertised the position; that the position was advertised in the popular print media, Employment Classifieds, Castlemaine Main and Midland Express and making it available to all and inviting applications from local as well as wider Australian job seekers; that the wages offered to nominee Ms Kaur are in line with the current market rates; that the business advertised the positions in the local market more than once and wanted to employ people locally as it provides better security that the employees are going to stay with the business for long time. Following the ad campaign the business did not receive a healthy response from the local market and people who applied were not suitably qualified and trained for the job;
·Copy advertisements as evidence of some of the research that the business carried out to deduce the current salary rates in the form of job advertisements from throughout Australia;
·Copy Certificate of renewal of registration for food premises for the sponsoring business;
·Copy BAS statements from April 2014 to March 2015;
·Bundle of photographs depicting the sponsoring business;
·Copy employment agreement between the sponsoring business sand the nominee;
·Summary of domestic recruitment efforts;
·Copy advertisements placed by the sponsoring business
·Copy occupation profile for the occupation of Cook from the Australian Government’s Department of Employment confirming the shortage of skilled employees in Australia; and
·Duty summary statement for the nominated occupation.
On 26 February 2017, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 4 May 2017. With the same letter, the tribunal invited the applicant to provide the following documents:
·Sponsor’s organisational structure listing employees and their roles within the business;
·Pay slips for the nominee for the past 12 months;
·Pay slips for another cook employed by the business and
·Sponsor’s financial documents for the most recent financial year.
On 27 April 2017, the applicant provided documents requested by the tribunal’s letter of 26 February 2017.
On 3 May 2017, the presiding member cancelled the scheduled hearing. Under subsection 360(2)(a) of the Act the tribunal considered that it should decide the review in the applicant favour on the basis of the material before it.
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 tribunal is satisfied that the applicant company made the application in accordance with the approved form, and paid the prescribed fee, as it was at the time of application. The tribunal is satisfied that this form identified the person proposed to work in the occupation, the ANZSCO code of the occupation and the location of the occupation.
On the basis of the Business Nomination Visa form the tribunal is satisfied that the nominating employer has provided the necessary certification stated in r.2.72(10)(d) or (11)(b) (regarding tasks, qualifications and experience).
The tribunal finds that r.2.72 (3) is satisfied.
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 DIBP records for the HMK Family Trust , the tribunal finds that the applicant was approved as a standard business sponsor for a five year period commencing on 14 September 2015 and that this status remains in effect.
The tribunal finds that r.2.72(4) is satisfied
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
On the basis of the information provided in the Business Nomination Visa form the tribunal is satisfied that that the applicant has identified the person to undertake the nominated occupation and that he is a subclass 457 visa applicant.
The tribunal finds that r.2.72 (5) is satisfied.
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 achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant stated in the nomination application form that the nominated occupation is Cook and provided the corresponding ANZSCO code. The applicant has recently confirmed this information. 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.
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.
The applicant has provided required certification. 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 before me 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 the relevant 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 tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of a Cook and corresponding ANZSCO code 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. Based on the evidence before me, and in particular, organisational chart, Financial Statements, job description and photographs of the restaurant provided to the tribunal, I am satisfied that the s[sponsoring business does not operate a fast food or takeaway food service.
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
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 the relevant instrument: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the relevant instrument : r.2.72(10)(AB).
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 13/028.
On the basis of the contract of employment which specifies a base salary of $54.080, which is under the threshold of $250,000, the tribunal finds that the requirements in in r.2.72(1)(c) and r.2.72(10)(cc) apply in this case.
The applicant indicated that there is an Australian citizen performing equivalent work at the same location. With the review application, the applicant submitted evidence that the restaurant employs another cook who is paid an hourly rate of $23,63. In addition the applicant has submitted research regarding the market salary rates, including job vacancy advertisements for similar roles in the same location. On the basis of this evidence, the tribunal considers the market rate of pay to be equal to that offered to the applicant. The tribunal is accordingly satisfied that the proposed terms and conditions of employment for the nominated person are no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing equivalent work in the applicant’s workplace at the same location: r.2.72(10)(c) is therefore satisfied.
As the base rate of pay of $54,080 for the nominated position exceeds the current TSMIT of $53,900, the tribunal finds that r.2.72 (10)(cc) is also satisfied.
Certification under r.2.72 (10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72 (10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the 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 has provided evidence to the department and the tribunal at review that the position includes the tasks of the nominated position of a Cook listed in ANZSCO. The applicant is lawfully operating a business in Australia and the nominated position is within the sponsoring business. Having regard to the occupational duties of the position the tribunal finds that the position includes the majority of tasks of the nominated occupation as outlined in ANZSCO.
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 has carefully considered the applicant’s evidence regarding the ongoing need for the position. Not all occupations are included as part of the nomination approval process. To maintain integrity of the nomination and visa process the tribunal must consider whether the position can properly be described as that of a Cook.
The tribunal has had regard to the ANZSCO description of the occupation of Cook. While it is not bound by that description the tribunal is satisfied that the position would involve the type of duties outlined in the ANZSCO.
The tribunal has taken into account the evidence regarding the business’s turnover, the position description, the offer of employment, the organisational chart, the financial documents and the statement of need provided by the applicant. Having regard to the information provided in the application form, including the relevant certifications provided by the applicant, as well as the updated information given to the tribunal regarding the role, the tribunal is satisfied that the position associated with the nominated occupation is genuine. The nominee has been working at the nominated position since August 2016.
On behalf of the sponsoring business, Mr Jeffrey Halacas provided submissions in which he wrote that the nominee has good understanding of the business operations and stated his satisfaction with the nominee’s performance. He also gave a thorough account of the nominee’s role in the business. The tribunal accepts that it is at a level consistent with that of Cook listed in ANZSCO. Further financial information was also provided which demonstrated the strong growth of the business. On the basis of this additional information and the applicant’s current circumstances the tribunal is satisfied that there is a genuine need for the position and 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 has submitted to the department an employment contract for the nominee setting out the main terms and conditions of employment.
I find on the basis of the evidence before me that 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 these reasons 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. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant instrument. In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to 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 about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The applicant provided the Department with evidence that it advertised for the position in the print media, Employment Classifieds, Castlemaine Main and Midland Express on 26^th and 29^th of May 2015. In addition the applicant submitted evidence of some of the research that the business carried out to deduce the current salary rates in the form of job advertisements from throughout Australia. I considered a summary of domestic recruitment efforts provided by the applicant with the review application.
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.
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.
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.
Antonio Dronjic
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)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
(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.

[2017] AATA 706

4 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies