The Trustee for the Angeli Business Trust & The Trustee for the Nikadim Business (Migration)

The Trustee for the Angeli Business Trust & The Trustee for the Nikadim Business (Migration) [2021] AATA 3330 (28 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Trustee for the Angeli Business Trust & The Trustee for the Nikadim Business Trust
CASE NUMBER:  1828153
HOME AFFAIRS REFERENCE(S):          BCC2017/4447138
MEMBER:K. Chapman
DATE:28 August 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 28 August 2021 at 5:20pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – no response to tribunal’s invitation to provide current information – nominee departed Australia and position currently filled by another person – no current approval as standard business sponsor – nominated occupation precluded by inapplicability condition – terms and conditions of employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 359(2), 359A, 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.57(3A), 2.57A, 2.72(4), (10)(aa), (c), (f), (10AA), (10AB), 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (Cth) (‘the Act’) and reg 2.72 of the Migration Regulations 1994 (Cth) (‘the Regulations’).
The applicant, the Trustee for the Angeli Business Trust and the Trustee for the Nikadim Business Trust in partnership, applied for approval on 24 November 2017. The applicant nominated Mr Karanpreet Singh (‘the nominee’) in the occupation of Retail Buyer. This occupation is coded number 639211 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’).
A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and reg 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 failed to satisfy r.2.72(10)(f), due to a lack of satisfaction that the position associated with the nominated occupation of Retail Buyer is genuine. On 25 September 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant provided a copy of that decision to the Tribunal.
On 9 April 2021, the Tribunal Registry wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. The Tribunal is satisfied that this invitation was properly despatched to the email address of the applicant’s registered migration agent (‘the representative’) then on the record. In response to a request from the representative, an extension of time to respond to the s.359(2) invitation was granted until 7 May 2021.
The Tribunal’s systems indicate that no substantive material was received by it in response, in either electronic or hard copy form, from the applicant or their representative until 10 May 2021. On that day the Tribunal received material including, but not limited to, ‘Request for information for Temporary Employer Nomination’ completed proforma, ASIC records, payroll information, accountant letter, financial reports, position description, director statement, organisational chart, job advertisement and labour market testing information. All submitted material has been duly considered by the Tribunal.
Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, the effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it, as outlined by the Full Federal Court in the matter of Hasran v MIAC [2010] FCAFC 40.
On 1 July 2021, the applicant appointed a new representative. On 7 July 2021, the Tribunal wrote to the applicant, through the new representative, clarifying that the right to hearing had been lost by operation of law. This correspondence invited the applicant to provide any further material not later than 23 July 2021. On 22 July 2021, the applicant submitted further material in response. The Tribunal notes that much of it, not all, replicates the package of material submitted on 10 May 2021. The Tribunal has duly considered all submitted material.
On 30 July 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting them to provide comments on, or response to, the following information:
a.“Departmental Records indicate that the nominee, Mr Karanpreet Singh, departed Australia on 28 October 2020. At a review hearing for his separate review application regarding the Subclass 457 visa, Mr Singh informed the Tribunal that he departed Australia voluntarily to travel directly to Canada. According to Mr Singh, he did so as he wanted to be closer to his cousins who reside in Canada. Mr Singh still resides in Canada.
b.Mr Singh also informed the Tribunal that he was initially employed at the Ashgrove Fresh Fruit Market to serve customers and then was offered employment buying fruit for the market. He informed the Tribunal that his main job at the Ashgrove Fresh Fruit Market was as a Retail Buyer, however he also sells produce to customers, sets the prices for produce and has interaction with the customers. Additionally, he advised that his position at the Ashgrove Fresh Fruit Market is currently being filled by another individual.”
The applicant responded to the above invitation by submitting a statement from Mr Angelo Angeli dated 10 August 2021. Mr Angeli contends that the nominated position is genuine, the applicant requires the services of the nominee and it is hoped the nominee will be able to return from Canada to resume employment. The Tribunal has paid due regard to Mr Angeli’s statement.
The Tribunal has carefully considered whether to afford additional time to the applicant to give the information requested in the s.359(2) invitation dated 9 April 2021, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.
The Tribunal has taken into account that the applicant has been aware since around 4 September 2018 of the reasons for the nomination application being refused, and also that the implications of not providing the information on time requested in the invitation from the Tribunal of 9 April 2021 were set out in that correspondence. Additionally, the Tribunal notes that further time for written material was provided to the applicant until 23 July 2021. Furthermore, on 13 August 2021 the applicant submitted the statement of Mr Angelo Angeli in response to the s.359A invitation dated 30 July 2021.
In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to give the information requested in the s.359(2) invitation dated 9 April 2021 and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the information requested in that invitation. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.
For the following reasons, the Tribunal has decided to affirm the decision under review not to approve the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be 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.
On 10 May 2021, the applicant submitted the ‘Request for information for Temporary Employer Nomination’ completed proforma. In that document, it is indicated that the applicant is not currently approved as a Standard Business Sponsor. It is worth pausing to reflect that the applicant received an invitation pursuant to s.359(2) of the Act dated 9 April 2021, and additional time to submit documentary material, but failed to provide material confirming that they are a standard business sponsor (or party to a work agreement) at the present time.
On balance, the Tribunal is not satisfied that the applicant is a standard business sponsor (or party to a work agreement) at the time of this decision. Therefore, the Tribunal finds that the requirements of r.2.72(4) are not met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The applicant nominated the nominee in the occupation of Retail Buyer (ANZSCO Code 639211). The aforementioned occupation has attached to it the following inapplicability conditions (or ‘caveats’) in accordance with instrument IMMI 17/060:
· Item 11 – The position:
o(a) is based in a front-line retail setting; or
o(b) predominantly involves direct client transactional interaction on a regular basis.
As described in the s.359A invitation dated 30 July 2021, the nominee informed the Tribunal that his main job at the Ashgrove Fresh Fruit Market was as a Retail Buyer, however he also sells produce to customers, sets the prices for produce and has interaction with the customers. Whilst the Tribunal has carefully considered the documentary evidence submitted in support of the nomination, including Mr Angeli’s assessment of the nominated position, the Tribunal prefers the spontaneous verbal evidence of the nominee that points to the setting of the position being in front line retail. On balance, the Tribunal finds that the nominated position is in fact based in a front-line retail setting. Therefore, the Tribunal is satisfied that nomination of the occupation is precluded by an inapplicability condition (or ‘caveat’) listed in instrument IMMI 17/060.
For these reasons, the requirements of reg 2.72(10)(aa) are not met.
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: r.2.72(10)(AB), however in the present matter this exemption does not apply.
The applicant declared in their application for nomination that they had no Australian employees in their workplace performing equivalent work to the nominee. Further, the applicant declared the base rate of pay per annum of the nominee to be $58,000, with guaranteed annual earnings of $63,510. Documents were submitted by the applicant to the Department including, but not limited to, an employment contract dated 5 July 2017 (noting an annual salary of $58,000) and market salary information relevant to the period up to the time of application for the nomination. The Tribunal has carefully considered the material submitted to the Department by the applicant.
The Tribunal notes that the applicant submitted a new employment contract for the nominee dated 5 July 2021 (noting an annual salary of $75,000). However, the applicant did not submit detailed contemporary material to it regarding the market salary for the nominated position. It is worth pausing to reflect that the applicant received an invitation pursuant to s.359(2) of the Act, and additional time to submit documentary material, but failed to provide an update on the favourableness or otherwise of the nominee’s terms and conditions of employment.
Therefore, at the time of this decision, the Tribunal is unable to be 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.
Therefore, the Tribunal finds that the requirements of r.2.72(10)(c) are not met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The applicant nominated the occupation of Retail Buyer (ANZSCO 639211). The ANZSCO provides an indicative list of tasks that a person fulfilling this role would usually perform. The Tribunal has carefully considered the nature of the applicant’s commercial activities, its size and financial position as depicted by the material it submitted to the Department. The Tribunal notes that, as indicated in the s.359A invitation dated 30 July 2021, the nominee advised he has not worked for the applicant since departing Australia for Canada on 28 October 2020. Furthermore, he advised that his position was being undertaken by another individual currently.
Whilst Mr Angeli contends that the applicant requires the services of the nominee, in the view of the Tribunal, the nominee’s departure for Canada well after the commencement of the COVID-19 pandemic is inconsistent with that contention. Following careful consideration of the available evidence, the Tribunal is not satisfied, at the time of this decision, that the nominee’s position was created other than to secure a migration outcome.
Accordingly, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. The Tribunal therefore finds that the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
K. Chapman
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2021] AATA 3330

28 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing