Ultra Global Seeds Australasia Pty Ltd (Migration)

Ultra Global Seeds Australasia Pty Ltd (Migration) [2019] AATA 2821 (31 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ultra Global Seeds Australasia Pty Ltd
CASE NUMBER:  1714401
HOME AFFAIRS REFERENCE(S):           BCC2016/3842135
MEMBER:K. Chapman
DATE:31 May 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 31 May 2019 at 1:39pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Customer Service Manager – specified occupation – inapplicability conditions (or ‘caveats’) – turnover requirement – special circumstances – commercial dispute – substantial sale to a client who defaulted on payment – genuine position – nominee being the director and shareholder of sponsoring company – genuine economic benefit to Australia – enhance innovation – create employment for Australian citizens – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 245AR, 359
Migration Regulations 1994 (Cth), rr 2.72, 2.73, cl 457.223
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
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 and Border Protection on 15 June 2017 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, Ultra Global Seeds Australasia Pty Ltd, applied for approval on 16 November 2016. The applicant nominated Mr Stephen Barnard (‘the nominee’) in the occupation of Customer Service Manager, which is coded as number 149212 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The nominee is a director and shareholder of the applicant company.
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 meet r.2.72(10)(f) due to a lack of satisfaction that the position associated with the nominated occupation of Customer Service Manager is genuine. In particular, the delegate expressed concern regarding the nominee being a director and shareholder of the applicant and him not performing the duties of the nominated occupation. On 5 July 2017, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.
On 8 January 2019, the Tribunal 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. On 22 January 2019, the Tribunal received material in response including, but not limited to, written submissions, ASIC information, Business Activity Statements, taxation documentation, financial reports, credit score information, Standard Business Sponsorship Approval notice, position description, commercial invoices, export and shipping documentation, customs clearance information, scientific reports concerning grass seed purity, certificates of insurance, an employment contract, third party market salary information, secondary school confirmatory reference, extracts from Departmental policy (PAM3) and VEVO information. All submitted material has been duly considered by the Tribunal.
The applicant, through its Customer Service Manager Mr Stephen Barnard (‘the nominee’), appeared before the Tribunal on 8 March 2019 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. The Tribunal notes that it had the benefit of taking the oral evidence of the nominee in person and observed him to provide his oral evidence in a straight forward and direct fashion. Accordingly, the Tribunal has assessed the nominee to have provided truthful evidence and to be a witness of credit, therefore it places high weight upon the evidence he has provided in the course of this review.
The applicant requested time to provide post-hearing submissions and, following the grant of an extension of time, final submissions were received by the Tribunal on 28 May 2019. They included an Affidavit of the nominee dated 28 May 2019, letter of demand pertaining to a commercial dispute, accountant supplementary report dated 27 May 2019, four contemporary Statutory Declarations from third parties involved in the applicant’s commercial agricultural activities, and photographs depicting primary production and the warehousing of agricultural products. All material submitted by the applicant in connection with the review has been duly considered by the Tribunal.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nominated person in the nomination application is Mr Stephen Barnard (‘the nominee’). He is nominated pursuant to s.140GB of the Act on the basis that he will work in the occupation of Customer Service Manager. Accordingly, the Tribunal is satisfied that the applicable provision in this case is r.2.72 as in force immediately before 18 March 2018.
Key considerations in the present matter are whether the applicant is performing the occupation of Customer Service Manager and if the inapplicability conditions (also known as ‘caveats’ in Departmental policy) pertaining to this occupation are operative.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The applicant lodged their application for nomination identifying the occupation of Customer Service Manager (ANZSCO 149212) to be performed by Mr Stephen Barnard, who is an applicant for a Subclass 457 visa. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form identifying an address in Brisbane, Queensland as the location where the occupation will be carried out, it was accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.
Further, the Tribunal is satisfied that the applicant is a standard business sponsor and the nomination identifies the six digit ANZSCO code for an occupation contained in a legislative instrument as an approved occupation for the purpose of the Subclass 457 visa.
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant submitted a copy of their Sponsorship Approval Notice from the Department indicating they are an approved standard business sponsor for the period 11 January 2017 to 11 January 2022.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
Having regard to the application for nomination and supporting documentary evidence, the Tribunal is satisfied that the applicant identified Mr Stephen Barnard as the visa applicant who will work in the nominated occupation.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in IMMI 17/057 in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
At the time of application for the current nomination, the nominee was the holder of a Subclass 457 visa on the basis of a previous nomination by the applicant. Two family members were granted Subclass 457 visas as secondary applicants of the nominee in relation to that nomination and both are included in the current application for nomination. Therefore, the requirements of r.2.72(6)(a) and r.2.72(7) are satisfied.
The nominee is not required to demonstrate that he has the skills necessary to perform the occupation. Therefore, the requirements of r.2.72(6)(b) are not applicable. For completeness, the Tribunal notes that it is satisfied the nominee has demonstrated he has the skills necessary to perform the occupation given he has been employed with the applicant company for some years and has prior experience in the agricultural sector.
There is no evidence before the Tribunal to indicate that the nominee was granted the Subclass 457 visa after PIC 4006A(1)(c) has been waived. Therefore r.2.72(7A) is not relevant to the present matter.
There is no evidence before the Tribunal to suggest the nominee was granted the Subclass 457 visa on the basis of meeting cl.457.223(6). Therefore, the requirements of r.2.72(10)(g) are not relevant to the present matter. For completeness, the Tribunal notes the nominee completed a minimum of five years of full-time study in secondary school where the instruction was delivered in the English language.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds that the applicant has identified the occupation of Customer Service Manager (ANZSCO 149212) and an address in Brisbane, Queensland as the location where it will be carried out.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal is satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in Instrument 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 Customer Service Manager (ANZSCO Code 149212). The aforementioned occupation has attached to it the following inapplicability conditions (or ‘caveats’) in accordance with Instrument IMMI 17/060:
·     Item 2 – the position has a nominated base salary of less than $65,000;
·     Item 11(a) – the position is based in a front-line retail setting; or
·     Item 11(b) – the position predominantly involves direct client transactional interaction on a regular basis; and
·     Item 19 – the position is in a business that has an annual turnover of less than $1,000,000.
The Tribunal took oral evidence from Mr Stephen Barnard, on behalf the applicant, regarding the nature of its commercial operations (in order to protect the commercial in confidence information of the applicant the Tribunal will only broadly summarise these operations). He outlined that the applicant company was initially established in Australia in 2009 with two other gentlemen, one an agronomist from Australia and the other a South Korean residing in the Republic of South Africa. The applicant company established a supply line for the sale of grass seeds into the Middle East. In 2010 a dispute arose between the two other gentlemen and they stepped down as directors of the applicant company. That year Mr Barnard decided to continue the operations of the applicant company and remain as its sole director. The Tribunal notes that the submitted ASIC records are consistent with the aforementioned information.
Mr Barnard explained that the applicant company has commercial relationships with farmers in the Atherton Tableland in regional North Queensland. He outlined that the applicant regularly sources grass seeds from these farmers, various processes are undertaken to prepare them for international shipping, they are shipped to a third country where they are ‘coated’, they then return to Australia following which the seeds are prepared for export. Mr Barnard advised the Tribunal that the applicant has exported seeds to clients in the Middle East, South Asia and South East Asia. Mr Barnard indicated that the applicant has obtained permission from the Department of Agriculture, Fisheries and Forestry to export seeds and further that the seeds have achieved customs clearance in Australia and various third countries. The applicant submitted documentation from both Australian Government and third country agencies confirming this information. Mr Barnard explained that the processes utilised to ‘coat’ the seeds enhances their export value. He also advised that the applicant deals with different seed varieties, from time to time exports bare seeds that remain uncoated, and makes sales to domestic clients.
Mr Barnard described his role to be the Customer Service Manager of the applicant, for which he receives an annual salary of $66,000. He outlined that he supplies customer service to the client base of the applicant, that is mostly to the offshore clientele which purchases the seeds exported from Australia. He stated that he facilitates the export of the Australian grown seeds to these offshore clients. Mr Barnard prepares and reviews policies concerning customer service, performs after sales services for the applicant’s clients, and is uniquely involved in the performance aspects of seed export by way of injecting his agricultural knowledge into the process by which customer expectations are satisfied. For example, Mr Barnard is able to interact with clients in a sufficiently technical fashion in order to achieve customer satisfaction. Mr Barnard agreed that from time to time he took payment from customers for the goods sold by the applicant, however he maintained that this was only a minor portion of his role as the Customer Service Manager. The submitted position description and employment contract are consistent with the aforementioned oral evidence of Mr Barnard.
Mr Barnard informed the Tribunal that the applicant’s commercial activities enhance employment in regional Queensland, as the farms with which the applicant has business arrangements employ Australian citizens to cultivate seeds which are then processed by the applicant for export markets. The applicant submitted to the Tribunal two Statutory Declarations from farmers located in the Atherton Tableland, Queensland (postcodes 4871 and 4883 respectively) attesting to the innovation provided by the applicant in grass seed export and also the employment creation generated on the farms by the commercial activities of the applicant. Both farmers indicate that their own commercial activities would be adversely affected in the absence of the applicant’s business. A third Statutory Declaration was submitted from a business operator in the agricultural sector in the Atherton Tableland (postcode 4882) who provides technical services with respect to the processing of the aforementioned seeds for export. He attests to the applicant being ‘one of the main players in the seed business in Far North Queensland’, in addition to indirectly contributing to employment within the local seed growing industry. A fourth Statutory Declaration from an Export Manager in Brisbane was also submitted to the Tribunal, in which the aforementioned declarant confirms the commercial activities of the applicant and notes the benefits they provide to both farmers and his own export business. The Tribunal accepts the evidence provided by the four declarants and accords their evidence high weight.
The applicant submitted various financial records and taxation information to the Tribunal. This documentation illustrates that the applicant is a profitable company and is financially viable. However, the initially submitted financial reports indicate that the applicant does not achieve an annual turnover of $1,000,000. The Tribunal raised this matter with Mr Barnard during the review hearing and he contended that a commercial dispute had arisen with an Australian client in the food industry which skewed the submitted turnover figures (in order to protect the commercial in confidence information of the applicant the Tribunal will only broadly summarise the particulars of this dispute). In summary, Mr Barnard outlined that he sold and delivered large quantities of seeds to this client who defaulted on payment. Mr Barnard submitted that these sales should be incorporated into the turnover figures of the applicant. The Tribunal permitted the applicant to provide further documentary evidence in support of the aforementioned contentions following the review hearing.

In due course, the applicant submitted to the Tribunal a Statutory Declaration from Mr Barnard attesting to the genuineness of the commercial dispute with the Australian client who defaulted on payment of the seeds sold to it, annexing copies of a pricing proposal and letter of demand in relation to this matter. Additionally, a supplementary report dated 27 May 2019 from the applicant’s accountants indicates that but for the aforementioned payment default the turnover of the applicant would be $1,436,351 in the 2017 financial year, $1,145,814 in the 2018 financial year and $1,102,420 in the present financial year. Final written submissions from the applicant’s registered migration agent contend that when the circumstances of the commercial dispute are appropriately considered, in conjunction with Departmental policy, the applicant satisfies the turnover requirement imposed by the inapplicability condition (‘caveat’) at Item 19 of Instrument IMMI 17/060.
The Tribunal notes that Departmental policy indicates that in certain circumstances a broader range of considerations may be taken into account when assessing whether a caveat (‘inapplicability condition’) has been discharged. For example, Departmental policy refers to special circumstances including ‘economic benefit to Australia’ and support to an ‘innovation agenda’ being relevant when considering a turnover caveat.[1] To avoid doubt, the Tribunal notes that the requirement for the applicant to demonstrate a turnover of $1,000,000 in accordance with Item 19 of Instrument IMMI 17/060 is imposed by law. Therefore, it cannot be waived. However, in the view of the Tribunal, the calculation of the turnover figure may include regard to special circumstances as envisaged by Departmental policy. Of note, it is well settled that the Tribunal is not bound by Departmental policy, but should pay it due regard unless there are cogent reasons for departure from it.[2] In the present matter, no such reasons are apparent to the Tribunal.
[1] Procedures Advice Manual (PAM3) – ‘Assessing eligible skilled visa occupations’, Section 4.4.3.
[2] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Tribunal has carefully considered the evidence in the present matter regarding the issue of the applicant’s turnover. That evidence suggests the initially submitted financial reports indicate unduly low turnover figures for the applicant as they did not incorporate matters pertaining to the sale of seeds to the Australian client that defaulted on payment for them. In the view of the Tribunal, it is appropriate to consider that turnover is calculated by reference to total sales. In the particular circumstances of the applicant, it is apparent that its total sales are higher than initially recorded once proper reference is made to the aforementioned commercial dispute.
The Tribunal regards the circumstances of the applicant to be somewhat unique. The applicant derives export income in the agricultural sector, facilitates innovation in that sector, and contributes to the employment of farm workers in regional North Queensland through its commercial activities. In conjunction with these matters, the applicant suffered disadvantage during a commercial dispute whereby it sold and delivered seeds to an Australian based client who defaulted on payment for them. As previously outlined, the accountant of the applicant indicates its turnover to be $1,436,351 in the 2017 financial year, $1,145,814 in the 2018 financial year and $1,102,420 in the present financial year once the particulars of the commercial dispute are taken into account. On balance, in the particular circumstances of the present matter, the Tribunal finds that it is appropriate to include the sales figures pertinent to the aforementioned commercial dispute and it accepts the revised figures from the applicant’s accountant with respect to turnover. For the sake of completeness, the Tribunal records that this finding turns on the particular facts of the present review application, including the unique issues previously outlined and its acceptance of the nominee’s credibility as a witness.
The Tribunal also accepts that, whilst finely balanced, the nominee performs the majority of the tasks of a Customer Service Manager as defined in ANZSCO. Accordingly, following careful consideration of the evidence, the Tribunal accepts that the nominated position is that of a Customer Service Manager (ANZSCO Code 149212). Additionally, the Tribunal is satisfied that the nominee’s position is not based in a front-line retail setting, nor does it predominantly involve direct client transactional interaction on a regular basis. Further, the Tribunal is satisfied that the nominee receives an annual base salary of $66,000. Therefore, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition (or ‘caveat’).
For the above reasons, the Tribunal is satisfied that the nominated occupation is not affected by an inapplicability condition, the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA). It is not in dispute that no Australian citizens or permanent residents are performing equivalent work at the same location as the nominee.
Mr Barnard advised that he as the nominee receives an annual salary of $66,000 with the submitted employment contract consistent with this evidence. Additionally, the applicant submitted third party information regarding market salary levels which indicates the nominee’s salary is within the appropriate range for a Customer Service Manager in Australia. The Tribunal accepts the veracity of the aforementioned evidence. Accordingly, the Tribunal is satisfied that if there was an Australian citizen or permanent resident performing equivalent work at the same location as the nominee then they would receive the same remuneration as him.
Following careful consideration of the evidence, the Tribunal finds 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 Australian permanent resident performing equivalent work at the same location.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the Instrument IMMI 13/028, which specifies the relevant amount as $53,900.
Following careful consideration of the evidence, the Tribunal is satisfied that the base rate of pay of the nominee is equal to that which would be provided to an Australian citizen or Australian permanent resident employee performing equivalent work at the same location. As the base rate of pay of the nominee is $66,000 per annum, it is greater than the current TSMIT. The Tribunal is therefore satisfied that r.2.72(10)(cc) is met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.
The applicant lawfully operates a business within Australia and the Tribunal is satisfied that it truthfully made the necessary certifications in the application for nomination.
For these reasons the requirements of r.2.72(10)(e) are 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.
For reasons previously expressed, the Tribunal is satisfied that the nominee will perform the role of a Customer Service Manager as defined in ANZSCO and that he will not perform a lower level occupation. Further, the Tribunal is satisfied that the employment of the nominee is critical to the commercial viability of the applicant’s business.
The Tribunal notes the concerns of the delegate regarding the position associated with the nominated occupation being genuine, given that the nominee is a director and shareholder of the applicant company. However, having regard to the particular circumstances before it, the Tribunal considers that the nomination will continue to provide a genuine economic benefit to Australia in the agricultural sector by deriving export income from grass seed cultivation, enhance innovation in the grass seed component of that sector, and create employment for Australian citizens working in the regional farms conducting business with the applicant as attested to by the farmers who have provided Statutory Declarations in support of the application for review. The aforementioned matters satisfy the Tribunal that the nomination is not made primarily to create a migration outcome for the nominee. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Customer Service Manager (ANZSCO 149212) is genuine.
Therefore, the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The applicant submitted a copy of the employment contract dated 14 November 2016 with respect to the nominee and the Tribunal is satisfied that he is employed pursuant to it.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
The applicant is not a party to a work agreement, and for this reason the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. In this matter the nominated occupation is Customer Service Manager (ANZSCO 149212). This occupation is classified as Skill Level 2 in ANZSCO, with such occupations being specified for the purposes of the occupational exemptions in s.140GBC(4)(b): IMMI 13/137.
The relevant occupation description in ANZSCO provides that generally the minimum required qualification for the position is a Diploma, however three years’ relevant experience may substitute for the aforementioned qualification. The Tribunal is satisfied the nominee is appropriately qualified for the position of Customer Service Manager, having many years’ experience in the agricultural industry including over ten years employment with the applicant company. Therefore, the skill and occupational exemption in s.140GBC(3) is satisfied.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Accordingly, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
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.

[2019] AATA 2821

31 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Appeal