TYRE EMPIRE PTY LTD ATF SHABNAM SHARIFI MOGHADDAM FAMILY TRUST (Migration)

TYRE EMPIRE PTY LTD ATF SHABNAM SHARIFI MOGHADDAM FAMILY TRUST (Migration) [2017] AATA 550 (19 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  TYRE EMPIRE PTY LTD ATF SHABNAM SHARIFI MOGHADDAM FAMILY TRUST
CASE NUMBER:  1600036
DIBP REFERENCE(S):  BCC2015/2577692
MEMBER:Alan McMurran
DATE: 19 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 19 April 2017 at 1:36pm
CATCHWORDS
Migration – Nomination – Terms and conditions no less favourable – Standard business – Genuine position – Customer Service Manager – Business uncertainty – No current budget or financial plan – Duties not consistent with ANZSCO

LEGISLATION
Migration Act 1958, s.140GB
Migration Regulations 1994, Schedule 2, r 2.72, r 2.73

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 14 December 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 4 September 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 the prescribed criteria in subregulation 2.72(10) (c), because the applicant did not provide evidence to demonstrate the terms and conditions of employment that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the workplace at the same location.
A representative of the applicant appeared before the Tribunal on 30 March 2017 to give evidence and present arguments. The Tribunal received oral evidence from Sharon Sharifi, director, on behalf of the applicant. The applicant sponsor and the nominee were both represented in relation to the review by a registered migration agent, solicitor Mr Fardin Nikjoo.
The hearing was conducted as a combined hearing of the application by the sponsor and the Visa application by the nominee. The evidence in the nomination application was also the evidence presented in support of the Visa application and in conjunction with the oral evidence presented at the hearing. This was explained to the applicant and the nominee at the commencement of the hearing and there was no objection to the application proceeding on that basis.
On conclusion of the hearing, the agent for the applicant requested a further period of 14 days to make written submissions in support of the application, and the applicant was directed to supply those submissions on or before 13 April 2017. Further written submissions were received.
At the end of the hearing, the tribunal informed the applicant that it had some concerns about whether or not the position of Customer Service Manager for the nominee was a genuine position, taking into account subregulation 2.72(10)(f), the Tribunal having to be satisfied in relation to all criteria under 2.72.
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).
On review, and in order to meet the requirements for approval of the nomination, the applicant must satisfy all the applicable requirements in regulation 2.72. If the applicant does not meet any one of the requirements, then the application must be refused.
The purpose of the hearing was to consider all of the documents and oral evidence put before the Tribunal by the applicant and to provide the applicant with an opportunity to answer any questions and support the application with oral evidence. In this instance, the applicant was given an additional opportunity to provide written submissions. The applicant supplied those submissions on 12 April 2017.
Those documents, additional to those detailed below, comprised three Statutory Declarations from respectively Mehran Sharifi- Moghaddam, Mahshad Sharifi- Moghaddam and Shabnam Sharifi- Moghaddam. The additional documents also included a CBA bank statement as at 25 Feb 2017 showing a current saving balance for Mahshad Sharifi- Moghaddam of $43,205.58, and an email from a broker for Beta Home Loans dated 10 April 2017 asserting that “you have approximate 95% chance to get this loan approved”.
Documents
The documents put before the Tribunal for consideration in the Department’s file and the Tribunal’s file comprised the following:
·the application completed by the sponsor;
·the Decision record;
·extracts from three Brazilian passports;
·a translated statement as to the Visa applicant’s business in Brazil;
·a translated statement confirming the Visa applicant was a manager/administrator for the period from 16 January 2006 to 30 December 2014;
·an extract from a marriage certificate, with translation, for Giselle Jarvidi;
·a health examination request from the Department;
·employment report for the visa applicant’s employment history from January 1992 to December 2014;
·a personal reference from ADCAM on behalf of the visa applicant for his period of work with that organisation from July 1992 to March 1993;
·confirmatory letters from the BUPA health fund;
·IELTS receipt dated 28 September 2015;
·details of dependent children of the visa applicant;
·three pages of information concerning available commercial properties for lease;
·a business plan dated 14 February 2014 prepared by the sponsor;
·advertising brochures featuring tyre changing equipment and vehicle hoists;
·extracts from SEEK on jobs for customer service manager/officers and assistants;
·an extract from PAST pay calculator for a principal customer contract leader with provision for payment for such position at $916.30 per week;
·Executed employment contract between the sponsor and the nominee dated 1 September 2015.
Oral Evidence
Ms Sharon Sharifi appearing for the applicant is a director and duly authorised to represent it in this application. A second director, Mehran Sharifi, was available on the telephone if required during the hearing. Ms Sharifi indicated in answer to a question that Mehran would not be able to add anything further to her evidence and “would say the same things”, and therefore he was not called upon.
At the hearing, the Tribunal asked Ms Sharifi about evidence concerning the financial position of the sponsor as no financial information had been provided. Ms Sharifi responded by saying that the business had commenced in 2009 and had been in operation for approximately 7 ½ years. The business had a current turnover between $900,000 and $1 million per annum. The business employed 4 people being Ms Sharifi and her husband, who were the principals of the business, and their son aged 32 and their daughter aged 27.
There were no other employees in the business and although the business was an approved sponsor, current until 2021, there have been no previous nominations. In answer to questions about the business, Ms Sharifi stated that approximately 60% of the business dealt with automotive repairs and issues concerning work of a mechanical nature, performed by Mehran and their son who were both licensed tradesmen, and the remaining 40% concerned the retail side of the business being for the sale of tyres and wheel components. The retail side was shared with Ms Sharifi and her husband and daughter.
According to Ms Sharifi, the business has a database of approximately 4,000 to 5,000 customers. Ms Sharifi is in charge of administration and is assisted by her daughter and their work involves maintaining a capital inventory, purchases and stock control and some customer liaison.
Mehran Sharifi and his son work in the mechanical repair side of the business, and have responsibility for customer liaison as they deal with issues raised directly by customers concerning work needing to be done on vehicles and their specific repair requirements. This includes things like changing tyres, automotive repairs, complaints, and the provision of inspection certificates for registration.
The business operates from leased premises occupying approximately 660 m² of space at Blacktown in Western Sydney.
Both Sharon and Mehran Sharifi are close to retirement age according to Ms Sharifi and looking towards winding down their day-to-day involvement. It was stated however that the two children are not regarded as suitable yet to take it on full time for themselves, as they lack business management experience.
This was the background which had led to a discussion in the family that they should look to taking on somebody from outside the business who could help manage and develop it. The family discussed opening a second store or perhaps even a third store in the Sydney region.
The applicant considered employing a Customer Service Manager to take on that role. It was anticipated that if a suitable candidate was located, the directors would be able to open a second store, which would be run by the two directors themselves, with the Customer Service Manager and the 2 children of the directors taking on the existing business at its present location at Blacktown.
Ms Sharifi stated that both she and Mehran will continue to assist the operation of the business from both premises and travel between stores for that purpose. It was important however that they were able to locate an employee whom they considered trustworthy and in whom they had confidence would have sufficient business experience and expertise to manage one of the new proposed store locations.
It was conceded that at this time these were suggestions only and have not been acted upon and no commercial lease arrangements were being negotiated or in place for a second store and no successful employee had been located following advertisements for such a position, which were advertised in SEEK over a 4 to 5 month period in 2015.
Ms Sharifi was asked questions about the advertisements and responses applying for the position of Customer Service Manager. Apparently there were some 25 responses from prospective candidates who were all interviewed variously by Ms Sharifi and by her husband. No other persons were involved in the interviewing process.
Ms Sharifi stated that no successful candidate appeared from those 25 responses and they were all rejected for a variety of reasons.
Ms Sharifi stated that she had a very good understanding of human nature and was well-qualified to choose a candidate herself, as she was “psychic” and has an understanding of human nature and which candidate would fit the requirements of a Customer Service Manager for their business.
The Nominee – Ms Sharifi’s Evidence
In about 2015 the nominee, Mr Farshad and his family came to visit the Sharifi family in Sydney on holiday.
Mr Farshad is the nephew of the directors, and was working and residing in Brazil with his wife and stepdaughter before coming to Australia.
Mr Farshad runs a business in Brazil where he operates three drycleaner outlets. He has been running that business for many years and Ms Sharifi regards him as a very successful businessman in whom she has the greatest trust and confidence.
Mr Farshad has no experience in the motor repair industry but has indicated that were his application to be successful, he would undertake training in motor vehicle repairs in Australia.
During Mr Farshad’s visit in 2015, Ms Sharifi discussed her business plans with him. She asked him if he would be interested in taking on the role of Customer Service Manager to help them grow and develop the business. He indicated affirmatively that he would be interested in doing so.
In September 2015, the nominee signed a contract of employment with the applicant who agreed to file this sponsorship application. The nominee has remained in Australia since then and is currently on a Bridging Visa awaiting the outcome of his application.
The contract of employment dated 1 September 2015, requires Mr Farshad to:-
·Work 40 hours per week;
·At a salary of $55,000 per annum plus superannuation and a “settlement” sum of $5,000.00;
·Carry out the role of customer service manager for 4 years;
·Have the principal responsibilities of “Customer Service Manager (149212) , Level 2 Service (full-time)” ;
·Primary responsibilities to include:
i.provision of professional services to customers, managing smooth running of the workshop, developing and reviewing policies, programs and procedures concerning customer relations;
ii.Providing direction and feedback to other team members;
iii.Planning and implementing after sales service;
iv.Liaising with the principal and other team members to identify and respond to customer expectations.
Mr Farshad understands that if the nomination is unsuccessful, then his Visa application must be refused.
Ms Sharifi gave evidence that Mr Farshad is now living at Stanhope Gardens in Sydney and visits the business premises at Blacktown from time to time. He has made certain suggestions to the applicant about how to run that business being suggestions about maintaining an inventory, budgeting, and marketing. Mr Farshad does not work in the business and is awaiting the outcome of his Visa application.
Ms Sharifi was asked questions about whether the nominee drives a motor vehicle and would be able to travel to the workplace at Blacktown. The witness responded by saying that his wife drives and that were he granted a visa, the nominee would obtain a license in due course.
Ms Sharifi confirmed that there is a very good family relationship between Mr Farshad and the directors and their children and that they would all support each other in terms of a business plan and proposals to grow the business.
Ms Sharifi stated that the business was currently “break even” and that if funds were necessary to start a second Tyre Empire store, then they may have to borrow funds either from her son who was willing to provide some from his savings, or from their bank. No steps had been taken yet to investigate credit facilities or what the budget might be for such a business proposal.
Despite the break even nature of current business performance, Ms Sharifi thought at least $100,000 would be realistic as initial capital expense for a second store, and that the current business would be able to support the expected increased monthly expenditure of this magnitude.
The directors were primarily concerned first to find “a trustworthy person” to take on the role of Customer Service Manager with the purpose of assisting them growing and developing the business.
Ms Sharifi said it was important that such a person has bilingual skills and was fluent in four languages, owing to the multicultural nature of their clientele and for the handling of complaints and generally dealing with customers.
When asked about the uncertainties of the business in the future and the fact that there was no current budget or financial plan in place, Ms Sharifi indicated that from her own experience of having started a business from nothing and having made it successful that she was certain they would be able to “do it again”. Ms Sharifi was equally certain that Mr Farshad would be the right person to assist them in achieving their planned development and growth.
Position must be genuine
Regulation 2.72(10) (f) requires that the position associated with the nominated occupation is genuine.
The ANZSCO classification of occupations referred to in the employment agreement with Mr Farshad and the applicant, sets out the requirements of the tasks which might be undertaken by a Customer Service Manager (149212). Those tasks include:
·developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided
·insuring operational efficiency within call centre
·providing direction and feedback to team members and assisting with recruitment
·managing, motivating and developing staff providing customer services
·planning and implementing after sale services to follow-up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
·liaising with other organisational units, service agents and customers to identify and respond to customer expectations
·may work in a call centre
·plans, administers and reviews customer services and after sale services and maintains sound customer relations (Skill Level 2).
The ANZSCO classification provides a useful guide to the occupation and tasks of a Customer Service Manager.
Findings
The Tribunal accepts that the nominee’s position may involve elements of management and elements of customer service, but this does not necessarily make the position one of Customer Service Manager.
A Customer Service Manager is a specialist manager position, normally to be found in a much larger organisation. Such a business might have other specialist managers, such as a human resources manager or a finance manager.
One of the important considerations as to whether a position might be genuine or not is the nature and size of the business, in this instance having two employees and two principals and being all family members.
The Tribunal does not accept that a full-time Customer Service Manager is necessary to the operation of the sponsor’s business. In the Tribunal’s view, a significant portion of the nominee’s duties are not consistent with the types of tasks included in the ANZSCO dictionary for the occupation of Customer Service Manager. The proposed duties include being involved with a repair workshop and customer concerns as to repairs, and related inquiries, and the retailing of tyre products, and matters in respect of which the nominee is not skilled and has no experience.
Having considered carefully all of the evidence presented including the information provided and the submissions by the applicant and of the nominee, the Tribunal makes the following findings:
·The position description for a customer service manager requires an ability to develop and review policies, programs and procedures concerning customer relations and goods and services.
·The Tribunal finds that Mr Farshad has no experience in any industry related to motor vehicle repairs, and the types of goods and services utilised in that industry and is unlikely to be able to assist in reviewing policies and procedures for goods and services in that business in the context provided by the sponsor, which might include activities such as opening a new Tyre Empire store and / or managing the existing store, which activities are likely to be undertaken and continued by the existing business owners/ principals;
·The sponsor does not presently have any policies for review or programs in place or procedures other than anecdotally what the current directors do spontaneously when responding to customers and to issues arising during the management of the enterprise.
·The current operation of the business involves 4 family members which is controlled by 2 directors and who will continue controlling the enterprise.
·The Tribunal finds that Mr Farshad would not be in a position to manage, motivate or develop existing staff for the provision of further services as there is no budget to do so, and he has no formal training in that role, and it would remain within the control of the present directors as to what steps might be taken. There is no established need for the role of Customer Services Manager.
·Mr Farshad may be well-placed to speak with many of the clients from diverse cultural backgrounds in their own language, which may assist with liaising with customers in the current business. But that is not the sole or only function of a Customer Service Manager.
·The Tribunal also finds that such customer liaison through utilising a person with multi language skills is not the principal objective of the directors in this instance of appointing a Customer Services Manager. That objective is principally to appoint an employee who may eventually become a store manager at another location, or at the current Blacktown premises.
·There is no current plan to open a new store or a budget in place to do so. There is no current position available for another store manager. On the evidence available, there are not sufficient tasks which might be performed by a Customer Services Manager within the guidelines set out in the occupation described in the ANZSCO dictionary to warrant appointing the nominee to such a position.
·The Tribunal does not place any weight on the additional documents provided on 12 April 2017 after the hearing. The statutory declarations assert the intention to expand the business and to use savings for that purpose. The bank statement alone is not evidence of funds necessary to finance the asserted business expansion without a loan , and the email from the broker does not provide any details of a current loan application or for how much, or any relevant terms and conditions. Little reliance can be placed upon the stated intentions, which are not substantiated, or the potential for a loan approval.

The Tribunal has placed little weight on the role and responsibilities described in the contract of employment as those duties do not appear to correlate with the principal objectives described in the evidence about possibly expanding the business and the Tribunal is not persuaded that those stated tasks are in fact what will be expected of the nominee.
Although the Tribunal accepts that some of the nominee’s tasks involve maintaining good customer relations and ensuring customer satisfaction in the context of the applicant’s business, they appear to be carried out at a very basic level and are tasks common to many sales or supervisory positions in businesses that provide services.
The Tribunal is not satisfied that the position offered to the nominee of Customer Service Manager offers a majority of the tasks which have been identified as relevant to the occupation in terms of the work which will be required of Mr Farshad.
The Tribunal is of the view that having regard to all the evidence the position on offer to the nominee is more one of Retail Supervisor (621511) rather than one specifically dealing with the tasks usually undertaken by a Customer Service Manager.
For these reasons 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.
Alan McMurran
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 550

19 April 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction