V D NGUYEN & T T HOANG (Migration)

V D NGUYEN & T T HOANG (Migration) [2019] AATA 293 (6 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  V D NGUYEN & T T HOANG
CASE NUMBER:  1617146
HOME AFFAIRS REFERENCE(S):           BCC2016/1321606
MEMBER:R. Skaros
DATE:6 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 06 February 2019 at 11:43am

CATCHWORDS
MIGRATION – approval of a nomination – occupation of baker – high salary offered – employment terms and conditions no less favourable – financial capacity to meet employment obligations – decision under review affirmed
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140GB, 362B
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 27 September 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 31 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 delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant provided a copy of the delegate’s decision record with the application for review.
On 29 October 2018, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 19 November 2018. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.
The Tribunal received written advice the applicant wanted to give oral evidence. However, the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. On 20 November 2018, the Tribunal dismissed the application under s.362B(1A) of the Act. On 23 November 2018, the applicant sought reinstatement on the basis that they had misunderstood the information provided by their representative, who had withdrawn his representation, and had understood that they could not attend without a representative. After considering the detailed explanation provided as to why the applicant’s proprietor did not attend the hearing, the Tribunal decided to reinstated the application under s.362B(1C)(a).
Ms T Hoang, who is one of the proprietors of the applicant partnership, appeared before the Tribunal on 4 February 2019 to give evidence and present arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in the relevant version of r.2.72. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
Evidence before the Tribunal
The applicant is the partnership of V D Nguyen and T T Hoang which operates the Katoomba French Hot Bakery. The applicant nominated the occupation of Baker (ANZSCO 351111) and identified Mr Min Thu Tran as the person who will work in the position. The nomination form and the employment contract indicate that the position is located in Katoomba and has a nominated base salary of $96,400.
A number of documents were provided to the Department in support of the nomination application, which relevantly included, a contract of employment, financial information, photographs, an organisational chart and submissions regarding an equivalent Australian worker at the same workplace and salary surveys from various websites. It was submitted that the business requires a qualified and experienced baker to meet demands and supervise the trainees. It was indicated, based on salary data, that the average salary for a Baker is between $55,000 and $59,000. It was submitted that the nominated role will include production supervision and management, for which Payscale indicates a salary of $82,000. It was submitted that the nominated position was vital for the business to grow and profit, and that the base salary of $96,400 offered to the nominee, which is the English language exemption threshold, was justified due to the nominee’s experience.
On review, the Tribunal sought current information regarding the relevant requirements for approval of the nomination in r.2.72. In response, the Tribunal received the following documents. An organisational chart indicating that the business had two trainees in addition to the two partners, photographs of the bakery and business activity statements for 2015. Also provided was a contract of employment dated 31 March 2016, indicating the nominee’s salary will be $96,400 in accordance with ELSET (English language salary exemption threshold) and 9.25% superannuation. The Tribunal also received salary information for T N Danny Nguyen, who is noted on the organisational chart as a FT sales assistant/trainee baker and son of business owners. The Tribunal also received the prepared partnership tax return and individual tax returns for each of the partners. Also provided were the financial reports for the partnership for the years ended 30 June 2016 and 30 June 2017.
At the hearing, Ms Hoang gave evidence that she and her spouse, Mr Nguyen, have been operating the bakery since 1991. When asked who currently works there, she stated herself, the nominee and her son. She noted that her spouse was currently overseas. Ms Hoang gave evidence that the nominee has been working in the business for about three years. When asked about his wages, Ms Hoang stated that she has not been paying the nominee but that she covers his food expenses, provides accommodation and gives him a small amount of cash as spending money.
When asked about the salary she proposed to pay the nominee, Ms Hoang stated that she did not propose to pay him any specific amount because he has been there to train her son and teach him how to make cakes and breads. The Tribunal put to Ms Hoang that in the nomination application it was indicated that the nominee’s remuneration would be in excess of $100,000, which included a base salary of $96,400 plus superannuation. In response, Ms Hoang stated that this was on the condition that the nominee is granted the visa and can work officially. She then stated that he currently works on a volunteer basis.
The Tribunal asked Ms Hoang what efforts she had made, since lodging the nomination over two and a half years ago, to find a baker in Australia. In response, she stated that she advertised and someone came but they soon left. When asked if she had indicated in the advertisement that the salary package is over $100,000, she stated that she did not advertise on a website but in the Vietnamese newspaper and that some people came to try and then left. The Tribunal put to Ms Hoang that it found it difficult to believe that they could not find a highly qualified baker in Australia if she was offering such a high salary. In response, Ms Hoang stated that she did not mention the salary amount and that Katoomba was too far for Vietnamese background people to travel for work.
The Tribunal discussed with Ms Hoang information in the financial statements. The Tribunal noted that the most recent financial report provided indicates that the business had a total income of $292,000, paid a total of $62,000 in wages and made a profit, before payment of income tax, of $73,672, which the Tribunal notes was distributed equally to each partner. The Tribunal also observed that the financial reports do not show that superannuation had been paid. The Tribunal raised the concern that the salary proposed for the nominee, which is $96,400 plus superannuation, which the Tribunal notes is $105,317, was quite substantial when compared with the business’ financial performance and expenditure. The Tribunal raised the concern that the business may not have the financial capacity to provide the terms and conditions of the proposed employment. In response, Ms Hoang stated that Mr Tran is a very good worker. He makes cakes, pies and breads and they will be able to pay him for his work.
The Tribunal put to Ms Hoang that to date they had not paid Mr Tran wages for his work and do not appear to have paid any superannuation. The Tribunal again noted the concern that business may not have the financial capacity to meet its obligations relating to the terms and conditions of the proposed employment. Ms Hoang stated that the nominee has the capacity to train and supervise two people who will work for their business and they will be able to pay the nominee a good salary.
The Tribunal reiterated its concerns regarding the business’ financial capacity and the applicant’s failure to pay Mr Tran a salary over the last three years of employment, and asked Ms Hoang if there was anything further she wanted to say. In response, Ms Hoang stated that they had not paid the nominee a proper salary because his job was just to help and support her son and do some work there but they have not officially employed him full time. When asked about the nominee’s hours of work, Ms Hoang stated that while it was not fixed, Mr Tran sometimes worked from 1:00 am to 3:00am and on other days from 1:00 am to 6:00 am. She stated that the nominee works between 3 and 5 hours each day.
When asked about the average salary normally paid for a baker in Katoomba, Ms Hoang gave evidence that it is about $800 per week net but that it could exceed $1000 per week if they had good skills. The Tribunal raised the concern that the business had proposed to pay the nominee well above the industry standard and that this raised the concern about whether the business genuinely needed a full time baker and whether the position may have been created to secure a migration outcome for the nominee. Ms Hoang stated that as she had already indicated that a qualified and skilled baker, like the nominee, can get well in excess of $1000 per week. When asked how she would be able pay the proposed salary given the earlier concerns raised about the business’ financial capacity, Ms Hoang stated that she will pay the proposed salary and that if the business does not run well then she can cut down the salary. The Tribunal noted that this raised the concern that the business may not comply with the terms and conditions of employment. In response, Ms Hoang stated that Katoomba is a tourist area with a lot of visitors and they are confident the business will do well and they will maintain their profit. She stated that they require the nominee to train other workers and to expand their business.
Considerations
The Tribunal has carefully considered the relevant evidence before it but is not satisfied, for the reasons that follow, that the nominee’s terms and conditions of employment will be no less favourable that those that are, or would be, provided to an equivalent Australian worker.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the relevant written instrument, which is currently $250,000: r.2.72(10)(AB). As the proposed base salary of the nominee is $96,400, which is less than the specified amount, r.2.72(10)(AB) is not relevant in this case.
In the written submissions to the Department, it was submitted that the person currently working as a baker in the business is Mr V D Nguyen who is also the proprietor and who does not draw a wage from the business. It was submitted that Ms Hoang is also a proprietor of the business and that the two bakers employed by the business are trainees. It was submitted that the business required a full time professional baker and that the market salary rate for an equivalent worker was based on information from remuneration surveys, such as Payscale and Adzuna, which indicated that the salary of a Baker is between $55,000 and $59,397. It was further submitted that the role involves production supervision and management, which according to Payscale is a role that attracts an average salary of $82,000. The Tribunal has also considered the submission that the nominee’s proposed salary of $96,400 is justified given his importance of the position to the growth of the business.
While the Tribunal has not received any current material about the earnings normally provided to persons undertaking equivalent work, a current search of the websites relied on by the applicant in their earlier submissions indicates that the average pay for bakers in Australia remains relatively unchanged. Also, Ms Hoang in her evidence to the Tribunal gave evidence that while a Baker in Katoomba can expect to get $800 net, an experienced baker would get in excess of $1000 a week.
Accepting that the applicant does not currently employ a full time, experienced, Australian citizen baker, performing equivalent work at the same location as the nominee, the Tribunal must now determine whether the terms and conditions of the nominee’s employment 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.
The evidence before the Tribunal, as submitted by the applicant in the supporting material and Ms Hoang’s oral evidence is that an Australian baker performing equivalent work at the same location would normally get an annual salary of between $52,000 and up to $82,000 for positions that include supervision and management responsibilities.
In this case, the applicant nominated the salary of $96,400 plus superannuation. Whilst the proposed salary is well in excess of what an Australian equivalent baker would earn, as considered above, the Tribunal is not satisfied on the evidence before it that the nominee’s earnings will be the amount proposed, i.e. $96,400 plus superannuation, or that he will even receive an annual salary of between $52,000 and $82,000.
On Ms Hoang’s own evidence, the nominee has worked at the bakery for the last three years but has not received any wages. Ms Hoang appeared to justify this by stating that they covered his accommodation, food and a small amount of cash for spending. When asked why she had not been paying the nominee the proposed salary even though he has been working in the nominated position, Ms Hoang then suggested that the nominee is a volunteer and that his job was to help support her son and do some work there and that he had not worked officially or full time. The Tribunal has had regard to Ms Hoang’s explanation but considers it inconsistent with other evidence she gave at the hearing, including the evidence about the hours of work undertaken by the nominee, which she indicated was between three and five hours each day, that he is a good worker who can make cakes, pies and breads, and that he has trained her son on how to bake these products.
The Tribunal has also considered Ms Hoang’s evidence that the nominee will be paid the nominated salary when his visa is granted, but is not satisfied that this will be the case. Firstly, the Tribunal is not satisfied that the applicant has the financial capacity to pay the salary, this is discussed in more detail below, and secondly, the Tribunal considers that if the applicant had any intention of paying the applicant the nominated salary, then they would have at least paid him an appropriate salary for his employment to date.
The applicant’s most recent financial report also casts doubt over whether the applicant has the financial capacity to provide the applicant the proposed salary or even a salary that is within the range of that normally paid to an equivalent Australian. The financial report indicates that the business paid a total of $62,000 in wages. There is no indication on the financial report that any superannuation amounts have been paid by the applicant. The Tribunal further notes that this amount does not appear to include the wages of the proprietors, Mr V D Nguyen and Ms T Hoang, who do not draw a salary from the business but who instead share the profits. The financial report indicates that the business made a profit of $73,672, which was distributed equally between the proprietors with each partner receiving $36,836, as evidenced by the 2017 financial report and their individual tax returns for 2017. Given the applicant’s wage expenses and the modest profits earned by the proprietors, together with the fact that the nominee has not been paid wages to date, the Tribunal is not satisfied that the applicant has the financial capacity to meet its employment obligations towards the nominee.
The Tribunal has also considered the submissions and claims that the business will experience growth as it is in a tourist area and because the nominee is a good worker, but is not satisfied that this overcomes the concerns of the Tribunal about the applicant’s current financial circumstances.
Given the above, the Tribunal is not satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For these reasons the requirements of r.2.72(10)(c) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION

The Tribunal affirms the decision not to approve the nomination.
R. Skaros
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 293

6 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction