VT Architects Pty Ltd (Migration)

VT Architects Pty Ltd (Migration) [2018] AATA 4547 (6 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  VT Architects Pty Ltd
CASE NUMBER:  1711365
DIBP REFERENCE(S):  BCC2016/3669365
MEMBER:Alan McMurran
DATE:6 Sep 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 06 September 2018 at 10:41am

CATCHWORDS
MIGRATION – Sponsorship approval – standard business sponsor – genuine position – nominated position – urban and regional planner – duly qualified – limited evidenced of nominee’s background or experience – no evidence of plans or developments prepared by the nominee – position description insufficient – decision under review affirmed
PRACTICE AND PROCEDURE – non-appearance by applicant and nominee – financial information not provided on request
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2015] FCCA 2091

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration.
On 3 November 2016, the applicant applied for approval of a nomination. The application nominated Mr. Lung Sing Lui for the position of urban and regional planner, ANZSCO 232611.
On 9 May 2017, the delegate made a decision 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).
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 subregulation 2.72(10)(f), because the applicant provided insufficient evidence to demonstrate the applicant is in a position to support the nominated occupation of urban and regional planner.
Tribunal history
The application was constituted to a member of the Tribunal on 8 February 2018.
On 15 February 2018, the Tribunal sent a letter to the applicant requesting updated and current information addressing the criteria under the regulation. The applicant was requested to respond on or before 1 March 2018.
On 27 February 2018, the applicant sent in a written reply, attaching documents including:
·a description of the company organisation,
·ASIC registration,
·a position description,
·a copy of a letter dated 24 October 2016 sent to the Department,
·a letter dated 12 September 2017 from the director,
·a signed employment agreement dated 1 November 2016 together with PAYG summary,
·an extract from HAYS recruiting,
·an IELTS test report and
·VEVO check result.
The applicant was invited to appear before the Tribunal on 3 September 2018 to give evidence and present arguments. The hearing was a combined hearing with the nominee[1] who was also invited to appear to give evidence and present arguments.
[1] Tribunal case 1722198.
On 3 September 2018, neither the applicant nor the nominee appeared at the appointed time for the hearing.
On 31 August 2018, the representative for the nominee had informed a case officer at the Tribunal that the nominee was sending in a withdrawal form. The representative stated that she had not heard from the applicant and that as far as the representative was aware, neither the applicant nor the nominee would be participating in the hearing.
The hearing invitation sent by letter to the applicant on 6 August 2018 states that if the applicant does not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to enable an appearance, or may dismiss the application for review without any further consideration of the application or the information before the Tribunal.
As a result of the non-appearance of the applicant, and the nominee, the Tribunal has decided to determine the application on the information before it, and the applicant has lost the opportunity to appear before it and to give evidence and to present argument.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination.
The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB (2). If any one of the requirements is not met, the Tribunal is not required to consider the balance of those requirements.
In this instance, the application was refused by the delegate, who did not consider the information provided by the applicant was supported by independently verifiable information.
The delegate pointed to the absence of copies of contracts or evidence of growth of the business such as turnover and profits, which might be available from current financial statements. These documents were not produced.
The Tribunal had requested updated information in its letter. The Tribunal provided details, without limitation, of the information that might be given. The Tribunal letter attached the criteria for approval under regulation 2.72, which sets out in some detail what is necessary for the approval of a nomination.
The applicant responded as set out above and included a letter from an accountant, EPB and Co, dated 28 February 2018. The letter states the applicant “would be able to comply with the sponsorship obligations and meet its financial responsibilities”.[2]
[2] T file f 49
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The applicant carries on business as a firm of architects at Cabramatta in Sydney and was established 1998. It is involved in projects as architect and as project manager. According to its organisation chart, it is a small firm engaging the director, two architects, a project manager and the nominee as urban planner.
The previous chart in 2016 indicates the applicant also utilises other industry consultants such as external town planners. It also engages a bookkeeper.
The nominated occupation is an urban and regional planner. The occupation as described in ANZSCO as follows:
UNIT GROUP 2326 URBAN AND REGIONAL PLANNERS
URBAN AND REGIONAL PLANNERS develop and implement plans and policies for the controlled use of urban and rural land, and advise on economic, environmental and social factors affecting land use.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification (ANZSCO Skill Level 1).

Tasks Include:
ocompiling and analysing data on economic, legal, political, cultural, demographic, sociological, physical and environmental factors affecting land use
oconferring with government authorities, communities, Architects, social scientists, Legal Professionals, and planning, development and environmental specialists
odevising and recommending use and development of land, and presenting narrative and graphic plans, programs and designs to groups and individuals
oadvising governments and organisations on urban and regional planning and resource planning
oreviewing and evaluating environmental impact reports
ostaying up-to-date with changes in building and zoning codes, regulations and other legal issues
omay serve as mediators in disputes over planning proposals and projects
omay speak at public meetings and appear before government to explain planning proposals

Occupation:
232611 Urban and Regional Planner

232611 URBAN AND REGIONAL PLANNER

Develops and implements plans and policies for the controlled use of urban and rural land, and advises on economic, environmental and social factors affecting land use.
Skill Level: 1
Specialisations:
Land Planner
Resource Management Planner (NZ)
Town Planner
Traffic and Transport Planner
The Tribunal regards the ANZSCO as a reliable measure of the tasks and duties of a particular occupation and how the occupation might be measured against the job or occupation descriptions. The Tribunal therefore places some weight upon that measure as applied to the relevant facts and circumstances of the particular case.
A measure of skill level I is the highest occupational requirement, which involves recognition of a bachelor degree or higher qualification, or at least 5 years of relevant experience with, in some instances, on-the-job training as a requirement in addition to any formal qualification.
The nominee, Mr Lui, is a Chinese national from Hong Kong. The nominee came to Australia at age 23, in 2004. The information before the Tribunal discloses that the nominee studied at the University of Technology in Sydney and qualified for the degree of Master of Property Development on 14 July 2014.
It would appear on that information that the nominee was duly qualified at skill level I, holding a Master’s degree from UTS in Sydney. There is no information however about the nominee’s background or experience in urban and regional planning, other than experience gained in employment with the applicant.
In order to determine whether an occupation is “genuine”, the Tribunal notes that the regulation does not specify the meaning of “genuine” or provide guidelines. The Tribunal must look to the particular circumstances of the case, bearing in mind that the courts have considered the issue of “genuine” position and occupation on many occasions.
In Cargo First Pty Ltd v MIBP [2015] FCCA 2091 the Federal Circuit Court examined the operation of cl 2.72(10)(f) of the regulation, which requires that the position associated with the nominated occupation is “genuine”, and expressed the view that:
What is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. (emphasis added).
This decision was upheld on appeal in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30, and the construction of r. 2.72(10)(f) at first instance was endorsed at [36].
A principle can be extracted from that decision to the effect that a qualitative analysis is to be preferred to simply ticking-boxes as to the tasks listed by ANZSCO. An analysis of what the position purports to be is applicable to the Tribunal’s discussion in this instance about a specific occupation, and whether the tasks and duties performed meet the generic description of the occupation so that it in reality “exists”.
Does the Occupation genuinely exist?
In making its findings, the Tribunal must have regard to the actual information available to it.
The Tribunal has had regard to the submissions from Strategic Migration contained in a letter to the Department dated 3 March 2017.[3]
[3] DIBP file ff 7057-60
The submission states that the evidence of the position is “confirmed” in an explanatory statement which aligns “entirely” the duties, tasks and responsibilities of the nominated position with those outlined in the ANZSCO classification. The submission argues that the narrative demonstrates the position exists and that the duties tasks and responsibilities are “undeniable, irrefutable and indisputable”.
The Tribunal finds however that a mere description of the role does not suffice for the purpose of making a finding as to the genuineness of the position.[4] As indicated in the above extract from Cargo, an analysis needs to be made of the work actually being done and how the role is performed.
[4]
This in part is the function of the hearing which would have enabled the Tribunal to ask questions and obtain information about work actually being done by the nominee in the stated occupation.
The Tribunal notes that the applicant has not supplied details of the work being performed by the nominee. No details are indicated as to when or how the nominee is engaged and what tasks and activities he performs in the role. For example, the Tribunal is unable to say (or to find) that the nominee is involved in compiling and analysing data on economic, cultural or sociological conditions relevant to any particular development or urban plan.
There is no evidence of how, when or where the nominee engages on behalf of the applicant with local planning authorities or development experts such as other town planners architects and engineers.
There is no evidence of plans or developments prepared by the nominee or recommended on behalf of the applicant for particular projects, or who on behalf of the applicant is involved in the projects to which it has referred, such as for named clients 398 Investments Pty Ltd and Fortune Construction and Design Pty Ltd.
There is no evidence of what advice in particular is given by the applicant to government and organisations on urban and regional planning. Although the applicant refers in a summary letter to the Department on 24 October 2016 to the “nominated position” there is no factual information to support the stated responsibilities such as evaluating other town planning reports, liaising with architects and government and councils or what site visits and field investigations have been undertaken.
The Tribunal finds that there is simply not enough information in support of the application which might found a conclusion the majority of the tasks as outlined for the role and the ANZSCO description of the occupation are in fact performed by anyone on behalf of the applicant in its organisation.
It is logical that the applicant in its involvement in regional developments for example will have a requirement for the need of experts such as architects, engineers, and independent planners including urban and regional experts. Such advice however may not involve necessarily the applicant in having its own in-house resources or employee for that purpose.
The applicant has provided very little if any material in support of such projects. In its most recent letter of 27 February 2018, the director, Mr Trang, attached a letter dated 12 September 2017 which appears to be a reference for the nominee, Mr Lui. It is addressed “to whom it may concern” and appears to confirm the engagement of the nominee by the applicant since 12 September 2016 on a full-time basis and on an annual salary then of $60,000 per annum.
It outlines several projects in which it is stated the nominee was involved, including a mixed-use residential apartment and commercial development at Bonnyrigg, a residential subdivision at Casula, a medical centre at Cabramatta, a Buddhist temple at Bringelly and a proposed boarding-house at Lidcombe. There are no details of the involvement of the applicant included to illustrate those projects, such as contracts, correspondence, expert reporting or budgeting.
The applicant has not produced its own financial statements such as profit and loss and balance sheets which are current, and which might support the ability of the applicant to pay for the services of a highly skilled in-house employee, in the role of urban and regional planning.
The Tribunal finds there is an absence of factual material upon which it might rely in making a decision as to whether the nominated position actually exists for a regular and full-time employee. There is no evidence of updated further or future projects upon which the applicant will rely and utilise the services and skills of the nominee and whether such planned projects are large or small scale and necessarily complex so as to engage the required skills of an urban and regional planner.
Having carefully considered the existing information and material available, the Tribunal finds it is not satisfied that the position nominated actually exists or is a genuine position within the applicant’s organisation.
The Tribunal is unable to rely on the historical information alone and the submissions as narrated and summarised by the representative, without reference to supporting documentation and information, and without being able to discuss this in detail with the applicant and the nominee.
For these reasons the Tribunal is not satisfied that the requirements of r.2.72 (10)(f) are met. The Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alan McMurran
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(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.

[2018] AATA 4547

6 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction