THE PHAM & PHAN INVESTMENT PTY LTD (Migration)

THE PHAM & PHAN INVESTMENT PTY LTD (Migration) [2017] AATA 105 (16 January 2017)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  THE PHAM & PHAN INVESTMENT PTY LTD
CASE NUMBER:  1419151
DIBP REFERENCE(S):  BCC2014/2053923
MEMBER:Karen Synon
DATE:16 January 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 16 January 2017 at 2:56pm
CATCHWORDS
Migration – Nomination – Subclass 457 – Terms and conditions – Sales & Marketing Manager – Low salary –Not commensurate with age, qualification and experience
LEGISLATION
Migration Act 1958, ss140GB, 359(2)
Migration Regulations 1994, r 2.72, r 2.73, r 2.57, IMMI: 09/113
Fair Work Act 2009

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 November 2014 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 20 August 2014. 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 visa 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) because he was not satisfied that the terms and conditions proposed are no less favourable than the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident performing equivalent work at the same location.
The applicant applied for review of the primary decision on 24 November 2014 and provided a copy of the department’s decision to the Tribunal.
On 17 March 2016 the Tribunal wrote to the applicant in accordance with s.359(2) of the Act, inviting it to provide the following information in writing:
Information which demonstrates that the nomination meets all of the requirements of Regulation 2.27. This includes but is not limited to the requirement(s) which the Department’s delegate found was not satisfied.
On 31 March 2016 a response was received which contained only an Employment Contract. Other evidence was provided prior to the hearing and is considered as appropriate below.
Mrs Phan Minh Y (Mrs Phan), on behalf of the applicant company, The Pham & Phan Investment Pty Ltd (‘the applicant’) before the Tribunal on 7 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the proposed nominee, Vu Thuy Trang Le. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages
The applicant was represented in relation to the review by its registered migration agent. He did not attend the hearing.
The Tribunal apologises for the delay in finalising this decision however has listened to the hearing recording and again reviewed all of the relevant documentation provided. It notes that despite discussing at length with the applicant its concerns about both the genuineness of the position and the issue on which the primary decision was refused, no further submissions have been provided following the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
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). 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: 13/028. The amount of earnings currently specified by the instrument is $250,000: r.2.72(10)(AB).
As the nominee's annual rate of earnings is less than this, the applicant is required to be assessed under r.2.72(10)(c).
The evidence before the Tribunal contained in the employment contract dated 1 June 2014, is that the visa applicant will be paid a base salary of $54,000 per annum exclusive of superannuation. Prior to the hearing, noting that the employment contract provided was dated 1 June 2014, the Tribunal asked that a current contract of employment be provided but was advised that this contract is valid for 4 years, that is until 1 June 2018.
The applicant’s written and oral evidence to the Tribunal is that the applicant only employs and only intends to employ one ‘Sales & Marketing Manager’ in the company. Therefore as there is no Australian citizen or permanent resident performing equivalent work at the same location the Tribunal has considered the methodology specified in IMMI: 09/113, for the purposes of r.2.72(10)(AA).
The delegate refused the nomination on the basis that r.2.72(10)AA was not met because, relying on the job vacancy advertisements provided to the department, he formed the view that the terms and conditions proposed were less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the workplace at the same location.
By reference to IMMI 09/113 the Tribunal finds that there is no fair work instrument, State industrial instrument or transitional instrument applying to the nominated occupation and the methodology in schedule a, sub item 2 (one) is not applicable. The Tribunal has had regard to the General Retail Industry Award 2010 because this award covers employees in the general retail industry however there is no classification in the award relevant to the nominated occupation.[1] Thus the Tribunal must instead have regard to “relevant information” in determining the terms and conditions that would be provided to an Australian equivalent employee.
Submission to department
[1] accessed 6 June 2016 and 16 January 2017.
In a statement provided at the primary stage the applicant stated that there was no equivalent worker and that the proposed salary is $54,000 per annum. It was submitted that the applicant had done research from the websites: and to understand that the minimum salary pay for a Sales and Marketing Manager position has fluctuated from $38,000 to $60,000 per year depending on the skills and experience of candidate and provided three vacancy advertisements from these websites demonstrating this. It was submitted that the nominee has a Bachelor of Business; has knowledge of management; previous work in the sales and services area and has been working for the applicant company. The applicant submitted “we do agree to revise her salary every year to increase her salary and no less than our base guaranty (sic) of $54,000/year (plus superannuation). As will the bonus will guaranty (sic) on the above of selling target to make sure she will learn more than her base salary had”. Provided to the Department were three position advertisements sourced from the quoted websites. The first one is for a Sales Manager at $38,000+ bonuses, the second is also for a Sales Manager for a salary of $50,000 to $60,000+ superannuation based in Sydney and the third one is for Advertising Sales Manager – Marketing PA for a salary of $50,000 to $60,000+ superannuation based in Brisbane. This last position has a subtitle of Marketing and PA and its role is described as supporting the Residential Project Manager.
Submission to the Tribunal
In addition to providing the same information detailed above to the Tribunal on review it was submitted that the applicant “believes” the proposed salary of $54,000 per annum plus superannuation is equivalent to what other Australian employees are being paid in similar workplaces”, all dated April 2016. Four position advertisements were provided to the Tribunal sourced from Seek.com and my career.com. The first one is for a Victorian State Sales & Marketing Manager with a salary range of $50,000 to $60,000 per annum in a franchise based business plus bonuses of up to $30,000 per annum if KPI’s are met. The second is for a Sales and Marketing Officer in the Chemicals Industry for a salary of $55,000 to $60,000+ superannuation based in Melbourne. The third is for an ‘Inside Account Manager & Customer Service – Digital Advertising in the automotive industry based in Melbourne for a salary of $56,000 plus superannuation and a “generous quarterly bonus plan”. The fourth is for a ‘Karma Cola Sales & Marketing Manager’ in the advertising and marketing sector for a salary of $60,000 to $70,000 based in Melbourne.
At the hearing the Tribunal explained to Mrs Phan the requirement in dispute in the primary decision. The Tribunal explained that there is an instrument specified by the Minister which sets out the process by which the Tribunal must determine if the terms and conditions are any less favourable than would be provided for an Australian citizen or Australian permanent resident performing the equivalent work at the same location. The employment contract provided which, although two years old, is still current, identifies the proposed nominee’s salary is $54,000. Mrs Phan said this would be until they grow. The Tribunal noted that in the submission it was stated that there is no equivalent worker and that they had looked on seek.com and my.career.com.au to understand the minimum salary paid to a marketing manager had fluctuated and the salary had fluctuated between $38,000 to $60,000 a year depending on the skills but that none of the examples provided relevant to the retail sector. After confirming with Mrs Phan that she had done this research Tribunal asked why she had not provided any research of salaries in the same sector. Mrs Phan said she could not find one and they can only afford that much because they are a small company and they can’t pay too high and the proposed nominee is only a graduate. Noting that the proposed nominee had now had at least two years’ experience working for the company as a Sales and Marketing Manager, Mrs Phan responded that is not really much and she (the proposed nominee) is happy with the salary.
The Tribunal said that a further four copies of job advertisements were provided to it (detailed above at paragraph 22) but that it did not think that any of these for advertisements supports the proposed salary of $54,000 and the reasons why. The Tribunal explained that it had consulted PayScale[2] which indicates that the median salary for a ‘Sales and Marketing Manager’ based in Melbourne is $81,345 with a range of $48,741 to $126,154.[3] It notes that an entry level position for a person with 0-5 years’ experience is $61,000.
[2] < accessed 6 June 2016.
The Australian Government’s Job Outlook database[4] indicates that an Advertising and Sales Manager[5] full time weekly earning are, on average, $1,562 which equates to $81,224 per annum.[6] It indicates the full time weekly earnings of an ‘Advertising and Marketing Professional;’ as $1,286 which equates to $66,872.[7] By contrast the Outlook database indicates that a Retail Manager’s full time weekly earnings are $920 which equates to $47,840. [8] The Tribunal also consulted one of the websites used by the applicant, com.au[9] and on the day of the hearing it had 47 “live sales and marketing jobs” advertised in Melbourne with an average salary of $78,571. [10]
[4] <
[5] It does not have information for the specific occupation of a Sales & Marketing Manager.
[6] < accessed 6 June 2016.
[7] < accessed 6 June 2016.
[8] < accessed 6 June 2016.
[9] Which directs to < accessed 7 June 2016.
[10] < accessed 7 June 2016.
The Tribunal discussed its concerns that the salary being offered and whether it is commensurate to that which would be provided to an Australian citizen or an Australian permanent resident performing equivalent work. Mrs Phan said she arrived at the proposed salary of $54,000 after she did some research and they are a small business and cannot afford to pay too much. That is why they looked for a trainee; someone who is a graduate. The Tribunal confirmed her evidence was that they were looking for a trainee and she responded yes; someone who has just graduated to do sales and marketing. Noting she given evidence that the proposed nominee had been doing this job for two years it appears she is no longer a graduate. Mrs Phan responded “we are not growing yet, in the future when we got more shops - when we meet the goals, I mean the internet sales and stuff”.
The Tribunal invited Mrs Phan to explain the following statement made in the submission provided to the department “we do agree to revise his salary each year, to increase her salary and no less than our base guarantee of $54,000. As well the bonus will guaranty (sic) on the above of selling target to make sure she will earn more than her base salary had”. She said they will increase it but not at the moment. Asked if the proposed nominee is eligible for any bonuses, Mrs Phan responded “yeah but um no”. Asked if there is any bonus agreement in her employment contract Mrs Phan said no.
The Tribunal noted it appeared that the applicant had looked through these 2 websites and only provided job advertisements that fitted with what she was prepared and able to pay because the advertisements she provided do not appear to be representative of the range of positions and salaries on these websites.
The Tribunal said it had concerns about the salary of $54,000 that the company was proposing to pay and while it noted Mrs Phan’s evidence that it is a small business, it has no other full-time employees at the moment, it is all they can afford and that the proposed nominee is happy with the salary, this is not the test the Tribunal is required to apply. Mrs Phan said she really needs someone like the proposed nominee to grow the business and a long time ago she opened six shops without the help of a marketing manager, did not do any market research and they closed down some of the shops. Mrs Phan said it was important that they have someone who is easy to work with and can communicate with in Vietnamese.
Mrs Phan said she would really like the proposed nominee to work with her. She has helped her a lot, she is easy to work with, knows the business well and they would struggle without her. Mrs Phan said “as you said it is probably not like…Tracey may not be like a real marketing manager but sort of that’s her job. She does that but because we are small business so it’s not like a big company like you have to do complex marketing stuff like that but she does help me. Without her I can’t do everything by myself including running the business and purchasing the stock…”. Mrs Phan said she needs the proposed nominee whether in Marketing or (as a) Retail Manager. She needs her for the next 2 years. She would be hard to replace.
Having regard to the methods set out in IMMI 09/113 the Tribunal has considered the independent data and has formed the view that the salary offered by the applicant company of $54,000 year is not commensurate with what an equivalent worker would be paid occupying the position of a Sales and Marketing Manager. While noting Mrs Phan’s evidence that they will pay her more once the business grows and make more profits, the Tribunal cannot base its decision on a speculated future salary. Nor can it make its decision based on the evidence that this is all the company can afford and the proposed nominee is happy with the salary.
The Tribunal consulted PayScale[11] at the time of the hearing which indicated that the median salary for a ‘Sales and Marketing Manager’ based in Melbourne is $81,345 with a range of $48,741 to $126,154.[12] It notes that an entry level position for a person with 0-5 years’ experience is $61,000. At the time of decision an entry level position for a person with 0-5 years’ experience is $61,041.[13]
[11] < accessed 6 June 2016.
[13] accessed 16 January 2017.
The Australian Government’s Job Outlook database[14] indicates that an Advertising and Sales Manager[15] full time weekly earning are, on average, $1,562 which equates to $81,224 per annum[16]and $1,750 per week or an annual salary of $91,000 at the time of decision.[17] It indicated, at the time of the hearing the full time weekly earnings of an ‘Advertising and Marketing Professional;’ as $1,286 which equates to $66,872[18] and $1,694 per week or an annual salary of $88,088 at the time of decision.[19] By contrast the Outlook database indicated, at the time of the hearing, that a Retail Manager’s full time weekly earnings were $920 which equates to $47,840[20] and at the time of decision $1,000 per week or $52,000 per year.[21]
[14] <
[15] It does not have information for the specific occupation of a Sales & Marketing Manager.
[16] < accessed 6 June 2016.
[17] < accessed 16 January 2017.
[18] < accessed 6 June 2016.
[19] < accessed 17/1 2017.
[20] < accessed 6 June 2016.
[21] < accessed 16 January 2017.

Further the age profile for (as an example) an Advertising and Marketing Professional on the government’s’ Job Outlook site shows that 50.80% of such positions are held by people aged under 34.[22] As the applicant is aged 29 and the visa application records that at the time it was lodged in August 2014 she had 2 years’ experience in the position of a Sales & Marketing Manager, and she has since been continuously employed in this occupation, for a further 2 years, albeit on a part time basis, the Tribunal is satisfied that this salary information on Job Outlook and PayScale is appropriate to the proposed nominee’s educational qualification, experience and age and she is not “only a graduate” as claimed.
[22] < accessed 16 January 2017.
As noted above the Tribunal also consulted one of the websites quoted by the applicant com.au[23] and on the day of the hearing it had 47 “live sales and marketing jobs” advertised in Melbourne with an average salary of $78,571. [24]
[23] Which directs to < accessed 7 June 2016.
[24] < accessed 7 June 2016.
Therefore the Tribunal has determined, after considering all the available evidence before it, and in applying the method set out in IMMI 09/113, that the terms and conditions of employment proposed to be paid to the person identified in the nomination are less favourable to those that would be provided to an Australian citizen or an Australian permanent resident to perform the equivalent work in the same workplace at the same location.
It follows that the requirements of r.2.72(10(AA) for the purposes of r.2.72(10)(c) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Karen Synon
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)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 105

16 January 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness