1401926 (Migration)

[2015] AATA 3351

1401926 (Migration) [2015] AATA 3351 (9 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Banz Interprises Pty Ltd

MRT CASE NUMBER:  1401926

DIBP REFERENCE(S):  BCC2013/1920338

COUNTRY OF REFERENCE:                 Australia

TRIBUNAL MEMBER:  Karen Synon

DATE:9 September 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the nomination is approved.

Statement made on 09 September 2015 at 5:34pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 January 2014 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).

2.The applicant applied for approval on 22 November 2013. 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 visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3.The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(10)(c) because she was not provide with the information requested in relation to the terms and conditions of employment provide to equivalent Australians workers and therefore could not be satisfied as to subregulation 2.72(10)(c).

4.The applicant applied for review of the primary decision on 7 February 2014 and provided a copy of the department’s decision to the Tribunal.

5.The applicant appeared before the Tribunal on 11 May 2015 to give evidence and present arguments.  The applicant was represented in relation to the review by its registered migration agent who was present throughout the hearing.

6.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

7.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).

The nomination must comply with the prescribed process

8.Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.

9.Based on the evidence contained in the Department's file, the Tribunal makes the following findings:

·The applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a);

·The nomination was made on the internet using the approved form and fee: r.2.73(2), (3), (5) & (9);

·The applicant identified the nominated visa applicant in the nomination: r.2.73(4A) and r.2.72(5);

·The nomination includes the location at which the occupation will be carried out and the name (‘Vehicle Painter’) and/or 6 digit ANZSCO code, since the applicant is a standard business sponsor: r.2.73(4A).

10.For these reasons the requirements of r.2.72(3) are met.

Nominator is a standard business sponsor or party to a work agreement

11.Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

12.The Tribunal finds, on the basis of the department's electronic records, that the person making the nomination is a standard business sponsor having been approved again today; 9 September 2015.

13.For these reasons the requirements of r.2.72(4) are met.

Identification of the nominee

14.Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

15.On the basis of the information provided in the nomination form the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation and that he is a subclass 457 visa applicant.

16.The Tribunal finds that r.2.72(5) is satisfied.

Requirements for existing Subclass 457 visa holders

17.The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.  In these cases:

·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);

·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);

·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and

·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

18.The Tribunal notes that in addition to the proposed visa applicant, the following secondary applicants were listed: Liza Marie Magdamit, Leigh Bianca Magdamit; and Liam Eugene Magdamit.  Department records confirm that Liza Marie Magdamit and Leigh Bianca Magdamit were granted 457 visas on 11 August 2011 on the basis of being members of the family unit of the primary visa applicant.  Liam Eugene Magdamit was born in Australia on 15 November 2012 and on 2 May 2014 was granted a bridging visa.   The Tribunal is therefore satisfied that subregulation 2.72(6)(a) is met.

19.There is no information before the Tribunal to suggest that the delegate has requested that the primary visa applicant demonstrate that he has the skills necessary to perform the occupation of ‘Vehicle Painter’.  On review the Tribunal does not consider it necessary to request that the visa applicant demonstrate his skills in any particular manner given the evidence before it that he has been employed in this occupation for a period in excess of 10 years and, relevantly, over 5 years for the current business (while noting the business ownership has changed during his employment).  For these reasons the requirements of 2.72(6)(b) are not applicable.

20.In relation to r.2.72(7A) the Department advised the Tribunal on 14 May 2015 that none of the visa applicants were granted their previous 457 visas on the basis of the waiver of cl.4006A(1)(c). For these reasons the requirements of 2.72(7A) are met.

1. If the Subclass 457 visa holder met cl.457.223(6), he must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

2. There is no evidence before the Tribunal that the applicant was granted a 457 visa on the basis of cl.457.223(6). Further there is no evidence before the Tribunal that suggests the applicant was an exempt applicant. For these reasons the requirements of r.2.72(10)(g) are met.

   Information about the nominated occupation

   23.Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

   ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

   ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 15/092, or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

   ·the location(s) at which the nominated occupation is to be carried out.

   24.The applicant clearly identified in the application form that it was nominating a ‘Vehicle Painter’ to work at 4 Eagle Terrace Taylors Lakes, Victoria. The applicant did not specify the corresponding 6-digit ANZSCO code in the application form instead writing the ANZSCO occupation of ‘Vehicle Painter’. The Tribunal has considered whether provision of the ANZSCO code by the applicant on review would satisfy this requirement. Looking at the overall structure of r.2.72, and given no indication in the wording of the regulation itself as to when the requirement must be met, the Tribunal finds it is open that r.2.72(8A) be satisfied at any time before the decision is made.  The applicant provided the ANZSCO code for ‘Vehicle Painter’ being 324311, to the Tribunal on review in its submission dated 25 May 2015.  The Tribunal is therefore satisfied the applicant has provided the name of the occupation and the corresponding 6-digit ANZSCO code.

   25.For these reasons the requirements of r.2.72(8A) are met.

   No adverse information known to Immigration

   26.Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57(2) and (3).

   27.There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an 'associated person'.

   28.For these reasons the requirements of r.2.72(9) are met.

   Specified occupation

3. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 15/092. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

4. As noted above the applicant is a Standard Business Sponsor.  It nominated the position of ‘Vehicle Painter’ which is an occupation specified in IMMI 15/092.

   31.The lead statement in relation to the Unit Group 3242 Vehicle Painters within which the specific occupation of Vehicle Painter is found is relevantly described in ANZSCO is:

   Vehicle Painters prepare surfaces of vehicles, match and mix colours and apply paint.

   32.ANZSCO lists the tasks as including:

   ·removing rough spots on vehicle panels

   ·sanding surfaces by hand and with power sanders

   ·masking areas not to be painted with tape and paper

   ·colour matching and mixing paints to match paint shades, and selecting pre-mixed paint

   ·applying primer and finishing coats using spray-guns, and sanding surfaces between coats

   ·touching up paintwork and applying polish to vehicles

   ·removing masking papers, and waxing and polishing finished paintwork

   ·painting signs and artwork on vehicles

   ·treating vehicles with rust-proofing chemicals

   33.Written and oral evidence before the Tribunal satisfies it that the proposed duties of the nominated position of ‘Vehicle Painter’ are consistent with the ANZSCO tasks detailed above.  Based on this evidence the Tribunal is satisfied that the tasks and duties of the nominated position are consistent with the tasks of the nominated occupation listed in ANZSCO.

   34.For these reasons the requirements of r.2.72(10)(aa) are met.

   Terms and conditions of employment

   35.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.

   36.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.

   37.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).

   38.These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB). The amount of earnings currently specified by the instrument is $250,000.

   39.The current Temporary Skilled Migration Income Threshold (TSMIT) for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028.

   40.The evidence before the Tribunal contained in the Letter of Engagement signed and dated 1 December 2014, is that the visa applicant will be paid a base salary of $53,900 in addition to superannuation and other entitlements.

   41.The Tribunal therefore finds that the annual earnings of the proposed visa holder (i.e. the nominee), under the terms of the contract and as defined by r.2.57A is $53,900 per annum, and the base rate of pay is also $53,900.

   42.On the basis of the Contract of Employment specifying a base salary of $53,900, which is under the threshold of $180,000 the Tribunal finds that the requirements in r.272(1)(c) and r.2.72(10)(cc) apply in this case.

   43.In submissions to the Tribunal the applicant stated that there was no Australian citizen or permanent resident performing equivalent work at the same location.  One employee does some vehicle painting but is also the factory foreman.  Another person, Roman Francesco is also employed as a 457 visa holder and is also paid a base salary of $53,900 per annum.  Pay slips evidencing this have been provided to the Tribunal.

   44.As there is no Australian equivalent performing equivalent work at the same location the Tribunal has considered the methodology specified in IMMI 09/113.  In considering that instrument, the Tribunal notes the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (‘the Award’) which is current to 9 September 2015.This Award is defined to cover (at 4.1(d)) “the repair and servicing of motor vehicles in the establishment of an employer not falling within clauses 4.1(a),(b) and (c) but who is engaged in the motor vehicle rental business”. In considering the applicant’s experience and duties the appropriate award classification is ‘Level 1 R6’. Section 33.4 of the Award specifies the minimum weekly wage for a Vehicle RS & S Level 1 R6 adult as $764.90 per week. This equates to a salary per annum of $39,774.80.

   45.The Tribunal is accordingly satisfied that the proposed terms and conditions of employment for the nominated position are no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing the equivalent work at the same location: r.272(10(c) is therefore satisfied.

   Base rate of pay

   46.Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.

   47.However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

   48.Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).

   49.For the same reasons as detailed above, the Tribunal finds that r.2.72(10)(cc) is satisfied.

   Requisite certification

5. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:

   ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 14/048;

   ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument IMMI 13/067;

   ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and

   ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 14/048.

   51.Based on information before it, including in the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made and for these reasons the requirements of r.2.72(10)(e) are met.

   52.For these reasons the requirements of r.2.72(10)(e) are met.

   Position must be genuine

   53.Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

   54.There are no issues in relation to the genuineness of the position.  Indeed the nominee has been working in the same position for the same company, albeit with a change of ownership, since 2010.  The Tribunal has the benefit of taking evidence from the applicant at the hearing and is satisfied that this is genuine, ongoing position.

   55.For these reasons the requirements of r.2.72(10)(f) are met.

   Employment under contract

   56.Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.

   57.The applicant has provided to the Tribunal a copy of the nominee’s employment contract setting out the main terms and conditions of employment which is signed and dated 1 December 2014.

   58.For these reasons the requirements of r.2.72(10)(h) are met.

   Work agreements

   59.Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.

   60.The applicant is not a party to a work agreement, and for this reason the requirements of r.2.72(11) and (12) are not applicable.

   61.For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

   DECISION

   62.The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

   Karen Synon
   Member

   
   

   ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   2.72      Criteria for approval of nomination — Subclass 457…

   (1)This regulation applies to a person who is:

   (a)a standard business sponsor; or

   (b)a party to a work agreement (other than a Minister);

   who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

   (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

   (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

   (4)The Minister is satisfied that the person is:

   (a)a standard business sponsor; or

   (b)a party to a work agreement (other than a Minister).

   (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

   (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

   (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

   (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

   (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

   (7A)In addition to subregulation (6):

   (a)if:

   (i)      the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

   (ii)     the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

   the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

   (b)if:

   (i)      the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

   (ii)     the person has listed on the nomination a person described in paragraph (6) (a); and

   (iii)    the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

   the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

   (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

   (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

   (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

   (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

   (d)the location or locations at which the nominated occupation is to be carried out.

   (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

   (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

   (b)if:

   (i)      there is no 6-digit ANZSCO code for the nominated occupation; and

   (ii)     the person is a standard business sponsor;

   the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

   (c)if:

   (i)      there is no 6-digit ANZSCO code for the nominated occupation; and

   (ii)     the person is a party to a work agreement;

   the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

   (d)the location or locations at which the nominated occupation is to be carried out.

   (9)The Minister is satisfied that either:

   (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

   (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

   Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).

   (10)If the person is a standard business sponsor — the Minister is satisfied that:

   (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

   (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and

   (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

   (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:

   (i)      are provided; or

   (ii)     would be provided;

   to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

   (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

   (i)      are provided; or

   (ii)     would be provided;

   to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

   (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

   (i)      the tasks of the position include a significant majority of the tasks of:

   (A)the nominated occupation listed in the ASCO; or

   (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

   (ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

   (A)the nominated occupation is a position in the business of the standard business sponsor; or

   (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

   (iii)    if the person lawfully operates a business in Australia:

   (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

   (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

   (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

   (A)for the occupation in the ASCO; or

   (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

   (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

   (i)      the tasks of the position include a significant majority of the tasks of:

   (A)the nominated occupation listed in the ANZSCO; or

   (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

   (ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

   (A)the nominated occupation is a position in the business of the standard business sponsor; or

   (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (iii)    if the person lawfully operates a business in Australia:

   (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

   (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

   (A)for the occupation in the ANZSCO; or

   (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

   (f)the position associated with the nominated occupation is genuine; and

   (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

   (i)      the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

   (ii)     if:

   (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

   (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

   the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

   (iii)    the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

   (iv)     unless subparagraph (ii) applies—the holder:

   (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

   (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

   (h)either:

   (i)      the person will:

   (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

   (B)give a copy of that contract to the Minister; or

   (ii)     the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

   (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

   (a)the terms and conditions of employment; and

   (b)the base rate of pay, under the terms and conditions of employment;

   that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

   (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

   (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

   (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

   (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

   (c)the Minister considers it reasonable to do so.

   (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

   (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

   (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

   (i)      the tasks of the position include a significant majority of the tasks of:

   (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

   (B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

   (ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

   (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

   (i)      the tasks of the position include a significant majority of the tasks of:

   (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

   (B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

   (ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

   (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.