UPC Pty Ltd (Migration)

UPC Pty Ltd (Migration) [2021] AATA 1613 (26 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  UPC Pty Ltd
CASE NUMBER:  2002854
HOME AFFAIRS REFERENCE(S):          BCC2016/1126407 CLF2016/95687
MEMBER:Michael Cooke
DATE:26 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 26 March 2021 at 3:37pm
CATCHWORDS
MIGRATION – nomination of a position – Federal Circuit Court remittal – Occupational Trainee Nomination stream – structured workplace training program specifically tailored to the training needs of the visa applicant – occupation of Child Care Centre Manager – genuine temporary entrant – trainee’s lengthy stay in Australia – trainee gaining management experience – applicant’s change of study direction – 12 months full-time experience – decision under review set aside
LEGISLATION
Migration Act 1958, s 140
Migration Regulations 1994, rr 2.72, 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 and Border Protection on 1 November 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.721 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 14 March 2016. 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 applicant applied for approval of the nomination on 14 March 2016. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72I(4), (5) or (6).
The matter is before the Tribunal following a Court Order remitting the matter to the Tribunal for reconsideration.
The applicant (in the person of Dr Thuy Mai-Viet) appeared before the Tribunal by telephone on 16 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant - Ms Thi Lam Kien PHAM.
The applicant was represented in relation to the review by its registered migration agent - Mr Derrick Pham. The representative attended the Tribunal hearing.
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 Act and the Regulations provide for approval of persons as sponsors and nominations of occupations, programs or activities to be undertaken in Australia by a prospective holder of a Subclass 402 (Training and Research) visa (Subclass 402 visa) – being the nominee/visa applicant. A nomination of an occupation, program or activity in relation to various visas, including Subclass 402 visas, is made under s.140GB of the Act as well as r.2.72A and r.2.73A of the Regulations. Relevant to this matter, the requirements for approval of a nomination for a Subclass 402 visa are also set out in r.2.72I of the Regulations and extracted in the Attachment to this decision.
Regulation 2.72I states, in part:
(1) This regulation applies to a person:
(a) who is an occupational trainee sponsor or a training and research sponsor; and
(b) who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, a program or an activity in relation to either of the following persons (the identified visa holder or applicant):
(i) a holder of, or an applicant for, a Subclass 442 (Occupational Trainee) visa;
(ii) a holder of, or an applicant or proposed applicant for, a Subclass 402 (Training and Research) visa.
(2) For subsection 140GB(2) of the Act, and in addition to the criteria set out in regulation 2.72A, the criteria that must be satisfied for the Minister to approve a nomination by the occupational trainee sponsor or the training and research sponsor are the criteria set out in:
(a) subregulation (3); and
(b) 1 of subregulations (4), (5) and (6).
(3) The Minister is satisfied that the person making the nomination is an occupational trainee sponsor or the training and research sponsor.
The applicant/nominator indicated in the Nomination Form (Form 1402N1), that they intend to be considered for approval of a Training and Research nomination Occupational Trainee Stream.
Regulation 2.72I(2)(b) requires that the applicant must satisfy one of the three requirements in r.2.72I(4) or (5) or (6). The applicant indicated in their Nomination Form that they wished to seek approval for occupational training to enhance skills. Accordingly, the applicant is principally seeking consideration under r.2.72I(5). That being said, the applicant must also be considered pursuant to the alternate streams (being r.2.72I(4) & (6)).
For an applicant to meet the requirements of r.2.72I(5), they must satisfy each of the requirements as set out in r.2.72I(a)-(d).
Is the nominated occupational training a structured workplace training program that is specifically tailored to the training needs of the nominee and of a duration that meets the specific training needs of the nominee?
Regulation 2.27I(5)(a) states:
(5) The Minister is satisfied that:
(a) the nominated occupational training is:
(i) a structured workplace training program; and
(ii) specifically tailored to the training needs of the identified visa holder or applicant;
and
(iii) of a duration that meets the specific training needs of the identified visa holder or
applicant; …
The applicant lodged an application for approval of a Nomination for an Occupational Trainee position on 14 March 2016. The nominated occupation was for a Child Care Centre Manager (ANZSCO: 134111). The nominee/visa applicant was Ms Thi Lam Kieu PHAM. The information considered by the delegate included the following:
·the period of training was said to be 1 September 2016 - 24 August 2017
·the activity would take place in Waverley (Bronte Day Care)
·the gross salary was AUD 38,4004
The additional skills to be acquired were said to be:
·booking excursions, incursions
·encouraging parents to become involved in programs
·ensuring caring and nurturing environment for families, staff and children
·ensuring staff adhere to regulations
·organising professional development for educators
·conferring or liaising with other early childhood education agencies
·performing audits
·orientation for new families
·maintaining records
The visa applicant had also completed a Diploma of Children’s Services in December 2015 at the University Preparation College (UPC) NSW5. She was said to be familiar with early childhood development theories and corresponding practices and was able to promote activities that supported intellectual and holistic development of children. It was said that she had received the following qualifications:
·Diploma of Children’s Services 6
·Certificate III in Children’s Services (July 2017)
·First Aid – Asthma and Anaphylaxis
·Food Safety Certificate
·Certificate of NQF Workshop
·Diploma of Accounting
·Certificate III in Accounting
·Certificate in Office Management
·Higher School Certificate
In his decision, the delegate said that no evidence had been provided which satisfied them the nominated occupational training was a structured training programme that was specifically tailored to the training needs of the identified nominee. Furthermore, there was no evidence that satisfied him that the duration of that training met the specific training needs of the nominee (visa applicant). Therefore, the delegate was not satisfied the applicant met r.2.72I(5)(a).
In migration agent submissions of 1 August 2019, it was claimed:
·The visa applicant completed a Diploma in Early Childhood Education in November 2015
·She worked at a family day care centre (Bronte Family Day Care) part time, from June 2015 to July 2018
·That she worked from July 2018 onwards in a Child Care Centre (A Bright Beginning, Roseville)
·An Employment contract with Crows Nest Kindergarten dated 1 August 2018
·Duties of the position
In the migration agent’s submissions of 1 August 2019, it was also claimed that at the Bronte Day Care Centre, the visa applicant ‘cared for four children, that she worked at a separate premise with no other staff or children (other than the four she cared for), that this limited the range of skills as well as the level of skills she could gain experience in and learn from’. As noted at the Tribunal hearing (separately constituted), it, therefore, appeared the Department delegate’s concerns were correct and that at that time, there was insufficient evidence of ‘structured workplace training’, which had been specifically tailored to the training needs of the visa applicant.
At the first hearing (separately constituted), it was also explained that the visa applicant had subsequently commenced work as a ‘Room Leader’ with the Crow’s Nest Kindergarten (A Bright Beginning), since July 2018, but that since March 2019, the visa applicant was said to have commenced work in a more senior role (Assistant Director).
The Tribunal (separately constituted), had considered the aforementioned ‘employment contract with Crow’s Nest Kindergarten dated 1 August 2018’ and what appeared to reflect the ‘Duties of the position’. However, the Tribunal (separately constituted) noted that they did not appear to establish that the work engaged in by the visa applicant was ‘structured workplace training’ which had been specifically tailored to the training needs’ of the visa applicant.
However, immediately prior to the hearing (separately constituted), on 2 August 2019, a further document was lodged. This was titled ‘Occupational Training Program’, and it appeared to have been either dated or printed in July 2019. This was purported to be evidence of a structured workplace training program, specifically tailored to the training needs of the visa applicant. An appraisal of the visa applicant (dated 20 July 2019), was also attached.
At hearing (separately constituted), and after having read the Occupational Training Program document, the Tribunal put to the applicant it may appear (words to the effect) the training for the visa applicant was generic and geared towards a labour market placement. The applicant agreed with this but the Tribunal (separately constituted) opined that it understood the applicant may have meant that the education the sponsor provided (the Certificate III in Children’s Services, awarded to the visa applicant 24 July 2014 – a six month course; and the Diploma of Early Childhood Education and Care awarded to the visa applicant 5 January 2016 – a nine month course), was geared towards a labour market placement. Be that as it may, and as stated above, the Tribunal (separately constituted) opined that the subsequent training provided by the first nominated employer (Bronte Family Day Care), was said to be inadequate.
Regarding the document titled ‘Occupational Training Program’, the Tribunal (separately constituted), noted that some of the ‘Specific Tasks’ identified therein (ie at pages 5 & 6), appeared to overlap with the skills the visa applicant would have presumably obtained during her employment with the Bronte Family Day Care. It was claimed the skills were identified as being required by the visa applicant. However, ‘Specific Tasks’ like ‘develop room goals as a team’, ‘maintain sound working knowledge of relevant guides’, ‘apply knowledge to practical scenarios’, ‘maintain clean and safe learning environment for children’, and ‘provide a social environment for children to learn’, would have been learnt with the visa applicant’s 18 month employment with the Bronte Family Day Care Centre. The reason this was relevant (the separately constituted Tribunal) opined is that this factor was one of the reasons that eventually satisfied the Tribunal (separately constituted) that the new training had not been specifically tailored to the training needs of the visa applicant.
Next, when discussed at the hearing (separately constituted), it had also been claimed the new position required management experience. It was claimed the visa applicant needed more training, but the Tribunal (separately constituted), said this new work may suggest an intended career path in Australia. For instance, the laws and guidelines developed for the Australian industry (in childcare) appeared to be particularly important for the visa applicant’s new position. The Tribunal (separately constituted) noted the Subclass 402 visa was a temporary visa and that the visa applicant had apparently resided in Australia since mid-2013. It opined that it may, therefore, appear that she was not a genuine temporary entrant. The Tribunal (separately constituted) believed this was important given it was relevant to a consideration of a structured workplace training program specifically tailored to the training needs of the visa applicant. It was claimed, inter alia, the appraisal of the applicant’s performance dated 29 July 2019 (page 17 of the Occupational Training Program’), indicated the work training was specifically targeted at the visa applicant’s needs. However, and as stated above, the Tribunal (separately constituted), believed that this appraisal was more targeted at training focussed on the duty statement for this particular position and not necessarily the training needs of the visa applicant.
Next, the Tribunal (separately constituted) noted the Department delegate’s decision was dated 1 November 2016. The Tribunal’s (separately constituted) hearing invitation letter was dated 28 May 2019. In the Tribunal hearing invitation letter (and earlier Tribunal letters), applicants are invited to lodge further evidence well before a scheduled hearing. The Tribunal (separately constituted), then said it might consider whether - given the length of time the visa applicant had resided in Australia and given the visa applicant had apparently been developed into the new position since March 2019 - the lateness of many submissions (lodged 2 August 2019 and after), might indicate that same were provided principally in order for the visa applicant to remain in Australia. Furthermore, they did not genuinely indicate structured workplace training specifically tailored to the training needs of the visa applicant. The applicant indicated she did not believe this was correct. However, the Tribunal (separately constituted) was not satisfied the proposed training was, inter alia, specifically tailored to the needs of the visa applicant.
A post hearing request for more time in which to lodge submissions was declined by the Tribunal (separately constituted - based on the reasons given for this request. However, post hearing (separately constituted) submissions were, in fact, lodged. These included (amongst others):
·A migration agent submission dated 1 August 2019;
·A document titled ‘Occupational Training Program’, either dated or printed in July 2019.
However, the Tribunal (separately constituted) noted that the material issues (with respect to the agent submissions) and the issues with the document, had already been addressed herein the (separately constituted) Tribunal noted. This was not correct and was the basis of a Court appeal.
The Tribunal (separately constituted) was not satisfied the nominated occupational training was ‘a structured workplace training program’ and that the training was ‘specifically tailored to the training needs of the visa applicant’. Accordingly, the Tribunal (separately constituted), found the applicant did not satisfy r.2.72I(5)(a); or r.2.72I(5).
Subsequently, following a successful appeal, the case was remitted to the present Tribunal and a further Tribunal hearing was held. The Court found that the (previously constituted) Tribunal ‘failed to consider material evidence, namely a revised occupational training document submitted on 7 August 2019, having misapprehended that it was the same as a document submitted on 1 August 2019’.
The applicant’s representative has sent a comprehensive submission addressing the contentious issues in the case and which were in toto raised by the delegate, the Tribunal (separately constituted) and the present Tribunal. It reads as follows:
Subsequent to the Tribunal hearing held on 16th Sep 2020 (Hearing), we provide the following written submissions. As the hearings were jointly held, we have addressed both applications in this submission.
GENUINE TRAINING
UPC Pty Ltd is a vocational education provider. They teach English, Business, Leadership & Management and Early Childhood Education. They offer these courses to both domestic and international students.

According to the Department of Home Affairs Student Visa Document Checklist Tool, UPC is a ‘low risk’ provider. Therefore, many of their students are assessed under streamlined provisions. This reflects that UPC have a strong record of compliance with their provider obligations.
UPC’s risk category is not specifically stated in the Checklist Tool. However, the risk category can be inferred by selecting UPC, and choosing various different countries. This would show that students from many different countries do not need to provide evidence of English ability as well as financial evidence.
refer to comments made by Dr. Thuy Mai-Viet at the Hearing, stating that: -
The schools primary focus is to provide education to students. Their occupational training program assists students with obtaining practical training to those who want to enhance their skills;
They do not provide migration advice or assistance. They do not encourage students to seek permanent residency. That is a personal choice for the student to make. On completion of studies at UPC, some students look for temporary work in Australia, other try a different field or study, or move onto higher Education in their same field of study. Some students return to their home countries.
We submit that: -
·Dr. Thuy Mai-Viet is a credible witness and there is no apparent reason to doubt his evidence;
·UPC are a school whose only focus is to educate and train. This is a genuine purpose, and the training is genuine training;
·UPC has not attempted to fill any labour shortages.
We note that UPC do not directly employ the trainee. They only prepare and deliver the training program to assist the student’s development, which takes place at a childcare centre, at a separate location.
TIME SPENT IN AUSTRALIA
We accept that the length of Ms. Pham’s stay in Australia may prima facie be concerning to the Tribunal. However, we note the following: -
Ms. Pham arrived in Australia in October 2011;
·She studied a Diploma of Accounting from October 2011 – December 2012;
·She studied Bachelor of Accounting from February 2013 – September 2013;
·Six months into her degree, she realized that she wasn’t suited to accounting;
·She then changed to childcare;
·She studied a Diploma in Early Childhood Education from February 2014 – November 2015. This a 2-year course, which was completed on time;
·She then applied for her 402 visa in March 2016; and
·Due to extensive waiting times at the Tribunal, as well as the Federal Circuit Court, this application is still ongoing today.
At the time of applying for her Subclass 402 visa, Ms. Pham was working at a Family Daycare Centre, where Ms. Pham would take care of 4 children. Her employer tried to assist her with training by providing additional responsibilities such as rostering and programming for other carers, however this position did not provide adequate support for training as a Child Care Centre Manager.

Due to this, Ms Pham changed employers to a Bright Beginning Roseville. This centre has 3 rooms and has a maximum capacity of 24 children.
When Ms. Pham started in July 2018 she commenced as a Room Leader where she supervised up to 7 children with the assistance of up to 2 educators.
In January 2020, Ms. Pham was promoted to an Assistant Director, where she runs the entire centre by herself on Mondays and Fridays and acts as second-in-charge on Tuesdays – Thursdays.
We submit that: -
Although Ms. Pham has been in Australia for a long period of time, this is mainly due to: -
·Her changing from accounting to childcare;
·Her initial employment at a family daycare which did not provide her with the range of tasks necessary to develop her skills; and
·Extensive appeal and review times.
·Ms. Pham only changed fields of study once. It is not unusual for someone to change fields, and Ms. Pham is firmly of the belief that she is not suited to accounting.
·Ms. Pham has not applied for an extensive number of visas or jumped from one course to another.
Since arriving in Australia, Ms. Pham has shown natural progression, from studying in Australia, to working as a childcare educator, to a Room Leader, and now assistant director, which is consistent with a ‘genuine temporary entrant’ criteria.
Appeal and review times are something that is out of Ms. Pham’s control.
Despite Ms. Pham’s extended stay in Australia, on a close and fair inspection, she is a ‘genuine temporary entrant’.
TRAINING PROGRAM
We have provided a copy of Ms. Pham’s training program.
We note that at the initial Tribunal Hearing, the members main concern with the training program appeared to be that it contained tasks pertaining to lower level skills which Ms. Pham should have already acquired from her previous experience as a family day care worker. The tasks which the member referred to were removed from the program before the member made his decision.
We further note that Ms. Pham’s supervisor (Ms. Aleta Hill) was involved in the development of the program, including the skills assessment, which indicate that the training was tailored to Ms. Pham’s needs.
We submit that the program is tailored to the training needs of Ms. Pham.
CONCLUSION
In conclusion we submit that: -
·The program is tailored to Ms. Pham’s training needs;
·UPC’s focus is on education and training, rather than filling labour shortages; and
·Ms. Pham’s extended stay in Australia are due to genuine reasons.
The Tribunal Hearing 2020
At the second (separately constituted) hearing the visa applicant and the representative of the nominating business (UPC) were extensively questioned about the contentious issues in the case. The nominator spokesperson insisted forcefully that his firm was involved in the business education of students and not the visa business. Their own particular career path post education at UPC was a matter for themselves. The management was not involved otherwise than in the education of the college students.
The Tribunal has also had the benefit of a copy of the training program constructed for the nominee by Ms Aleta Hill - her assessor. This was submitted by her representative after the hearing.
Findings
Occupational training to enhance skills
(5) The Minister is satisfied that:
(a) the nominated occupational training is:
(i) a structured workplace training program; and
(ii) specifically tailored to the training needs of the identified visa holder or applicant; and
(iii) of a duration that meets the specific training needs of the identified visa holder or applicant; and
(ba) the nominated occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in an instrument in writing for this paragraph; and
(c) the identified visa holder or applicant has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination; and
(d) the identified visa holder or applicant has appropriate English language skills to undertake the nominated occupational training.
The Tribunal has taken note of the evidence presented to the initial Tribunal (separately constituted). The crucial issue which was addressed then and by the present Tribunal is the educational pathway pursued by the visa applicant (Ms Pham). Plainly she (like many foreign students) had a change of direction in her early studies when she dropped her accountancy studies to pursue a career in Childcare. Her studies (in that profession) resulted in her being granted a Diploma in Early Childhood Education and later a Diploma of Children’s Services. As a part of her studies she was required to do practical childcare management responsibilities in a daycare facility which (if successfully performed) then contributed to her subsequent experience and the course requirements for graduation purposes.
Unfortunately for the visa applicant, during her time at the Waverley (Bronte Day Care) the representative informs “her employer tried to assist her with training by providing additional responsibilities such as rostering and programming for other carers, however this position did not provide adequate support for training as a Child Care Centre Manager”. Not surprisingly, the visa applicant, did not wish to impugn her chosen career objective. She, therefore, “changed employers to a Bright Beginning Roseville. This centre has 3 rooms and has a maximum capacity of 24 children”. The visa applicant’s decision to change her practical training provider proved to be wise because her subsequent employer (A Bright Beginning, Roseville) has promoted her to the Assistant Manager of a centre which has 3 rooms and a maximum capacity of 24 children. She oversees the facility two days a week - the Tribunal is informed.
Regarding paragraph (c) the subregulation requires that “the identified visa holder or applicant has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination”. This means at least a year full time experience between 14 March 2014 and 14 March 2016 (the date of application by the nominator/time of nomination) as a Child Care Centre Manager (ANZSCO134111).
The Representative informs that:
‘at the time of applying for her (Subclass) 402 visa, Ms. Pham was working at a Family Daycare Centre, where Ms. Pham would take care of 4 children. Her employer tried to assist her with training by providing additional responsibilities such as rostering and programming for other carers, however this position did not provide adequate support for training as a Child Care Centre Manager’
The questions that arise for Tribunal consideration are, therefore, are the following:
·Did the applicant have ‘at least 12 months full-time experience in the occupation to which the nominated occupational training’
The representative in an early submission to the Tribunal (separately constituted) stated that the visa applicant ‘worked at a family daycare centre from June 2015 – July 2018 (Bronte Family Daycare). As a family daycare educator, the nominee cared for four children. She worked at a separate premise with no other staff or children. This limited the range of skills, as well as the level of skills she could gain experience in and learn from’.
The Tribunal has had the benefit of considerably more information than was available to the delegate and the Tribunal (separately constituted). It has, therefore, been able to have a more ‘wholistic’ look at a case which has dragged on from the initial delegate’s decision on 1 November 2016 through a Tribunal review, a further successful Court appeal and back to the Tribunal in March 2021.
The Tribunal agrees with the representative that this longevity may have created the impression to the Tribunal (previously constituted) that the visa applicant had ‘an intended career path in Australia’ and believed that this (then) ‘new appraisal was more targeted at training focussed on the duty statement for this particular position and not necessarily the training needs of the visa applicant’.
The present Tribunal notes that the position the visa applicant is seeking is plainly that of Child Care Centre Manager (ANZSCO: 134111). This position necessitates management skills per se. The Tribunal agrees with the (separately constituted) Member that the childcare centre in Bronte plainly could not provide these skills to the visa applicant due to its size. Furthermore, remaining there was not going to lead to the visa applicant gaining the necessary professional skills required for her career prospects nor meeting the criteria for a Subclass 402 visa. So, the review applicant set about remedying these problems – successfully.
The Tribunal is satisfied that the peregrination through Tribunals and Courts has obscured the fact that the review applicant has presented and actioned a ‘structured training program” for the visa applicant as required by reg.2.721(5)(a)(i) and outlined by Ms Aleta Hill. In fact, this document discloses clearly some of the issues which created the problem that led to the review applicant being refused initially by the delegate for lack of the presentation of ‘a structured workplace training program’ for the visa applicant. A complete reading of the document from Aleta Hill (originally submitted back in 2019) indicates that the nominated occupational training is a structured training program and one which is specifically tailored to the training needs of the identified nominee or is of a duration that meets the specific training needs of the nominee. The Tribunal observes that. ‘Old Father Time’ has assisted the review applicant to meet the required criterion. However, the Tribunal is satisfied, nevertheless, that the visa applicant for her part (despite conjecture otherwise) has pursued her activities as ‘a genuine temporary entrant’.
The Tribunal finds from the evidence before it, that the Tribunal is satisfied that this application meets the requirements of sub-clause 2.72I (5)(a)-(d).
The Tribunal is, therefore, satisfied that the application meets the criterion for approval of a nomination in regulation 2.72(I)(2)(b).
Accordingly, the decision under review must be set aside.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Michael Cooke
Senior 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 1613

26 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies