1403473 (Migration) - [2015] AATA 3303

1403473 (Migration) [2015] AATA 3303 (21 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AKJM Pty Ltd ATF AKJM Family Trust
CASE NUMBER:  1403473
DIBP REFERENCE(S):  BCC2013/917879
MEMBER:Mary-Ann Cooper
DATE:21 August 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 21 August 2015 at 5:04pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by vpa delegate of the Minister for Immigration on 5 February 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).
The applicant applied for approval on 25 June 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa) because the nominated occupation did not correspond to an occupation specified in the relevant instrument.
The applicant, as represented by its sole director, appeared before the Tribunal on 30 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, the nominee and the Quality Assurance manager from Fresh Select.
The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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 delegate assessed the nominated position and considered that it did not reflect the tasks of an Agricultural Technician, as outlined in ANZSCO code 311111, but were consistent those of a farm worker, which was not specified in the relevant instrument as required by r.2.72(10)(aa). The Tribunal has considered these issues under its discussion of r.2.72(10)(f).
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The applicant in this case is nominating on occupation under s.140GB(1)(b) and has identified an applicant for a Subclass 457 visa as the person who will work in the occupation for the purposes of r.2.73(1A). On the basis of material on the Department’s file and in its records the Tribunal is satisfied that the applicant has identified in the nomination a proposed applicant for a subclass 457 visa as the person who will work in the occupation (r.2.73(1A)(b); that the nomination was made using the approved form and fee (r.2.73(2), (3), (5) & (9)); the nominee has been identified in the nomination (r.2.73(4A) and the nomination includes the location at which the occupation will be carried out, and the name and 6 digit ANZSCO code (r.2.73(4)).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Departmental records confirm that the applicant is a standard business sponsor whose approval ceases on 9 September 2016.
The Tribunal is therefore satisfied that the applicant is a standard business sponsor and the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
In its application the applicant has identified Gurpreet Singh Sidhu as the applicant for a Subclass 457 visa who will work in the nominated occupation.
On this basis, the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in 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).
Departmental movement records indicate that the nominee currently hold a Bridging visa and not a Subclass 457 visa.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·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 relevant instrument; 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.
The applicant stated in the nomination application form that the nominated occupation is Agricultural Technician and has provided the ANZSCO code 311111. The location at which the occupation is to be carried out in Victoria has also been specified.
For these reasons the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57(2) and (3).
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 with the applicant or an ‘associated person’. A recent check of ‘client of interest’ notes on the ICSE database found no relevant entries. At the hearing the applicant’s director confirmed that there was no such information.
For these reasons, the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 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).
The nominated occupation of Agricultural Technician and corresponding code 311111 appear on the relevant list in the relevant instrument IMMI 15/092. The instrument does not require that the nomination be supported in writing by a specified organisation.
The delegate’s decision refused the visa under this subsection however the Tribunal discusses these issues further below under r.2.72(10)(f).
For these reasons, the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
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 written instrument IMMI 15/050: r.2.72(10)(AB).
The nominee’s base rate of pay, as reflected in recent salary documents, is $54,080 per annum, exclusive of superannuation. The relevant instrument, IMMI 15/050, specifies the threshold at $180,000.00. As the nominee’s annual rate of earnings is less than this, the applicant is required to be assessed under r.2.72(10)(c).
The nominee’s terms and conditions of employment are set out in his contract of employment. At the hearing the applicant’s director confirmed the content of the organisation chart provided which indicates that there is another Australian in the workplace performing the same work in the same location. The evidence provided to the Tribunal establishes that the employee and the nominee’s contracts and wages are identical.
The Tribunal is therefore satisfied that the nominee’s terms and conditions of employment are in relevant respects no less favourable than those that are provided to the Australian citizen who is performing equivalent work at the same location.
It follows that r.2.72(10)(a) is satisfied.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 15/050. Currently, that threshold is $53,900.
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.
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 15/050: r.2.72(10AB).
Information provided by way of recent payroll slips for the Australian citizen and the PAYG summary for the nominee demonstrates their base rate of pay is $54080 per annum. Therefore the Tribunal finds that the base rate of pay for the Australian citizen performing the same work at the same location is above the TSMIT.
It follows that the Tribunal finds that the requirements of r.2.72(10)(cc) are met.
Requisite certification
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 ANZSCO 311111 for the position of Agricultural Technician; and if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity; and the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
The Tribunal noted that the certifications on the Department’s file were incomplete and did not correctly identify the nominating employer. Following the hearing the relevant certifications were received.
The Tribunal is satisfied on the basis of the relevant certifications in the application form that r.2.72(10)(e) is met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The delegate refused this nomination on the basis that the tasks of the nominated position were not consistent with the occupation as listed in ANZSCO and were more closely aligned with those of a farm worker. On this basis the application was refused under r.2.72(10)(aa).
ANZSCO describes Agricultural Technicians as follows:
AGRICULTURAL TECHNICIANS perform tests and experiments, and provide technical support to assist Agricultural Scientists in areas such as research, production, servicing and marketing.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·     examining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies
·     assisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage
·     identifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops and livestock, and assisting in devising methods of control
·     analysing produce to set and maintain standards of quality
·     inspecting livestock to gauge the effectiveness of feed formulae
·     assisting in controlled breeding experiments to develop improved crop and livestock strains
·     arranging the supply of drugs, vaccines and other chemicals to Farmers and Farm Managers, and giving advice on their use
·     collecting and collating data for research
·     planning slaughtering, harvesting and other aspects of production processes
·     may advise producers on farming techniques and management.
In Nguyen and Vu Publishers Pty Ltd v Minister for Immigration and Anor [2013] FCCA 1697, the Court held that the task for the Tribunal is to determine whether the nominated occupation corresponds to an occupation in the applicable instrument, and that such a judgment must inevitably compare the real duties of the nominated position with that of a specified occupation. In addition the recent decision of the Federal Circuit Court, Cargo First P/L v MIBP [2015] FCCA 2091, the Court said that what is required by r.2.72(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 its comparison with the occupation which has been nominated by the sponsor, not simply a determination whether the duties relevant to the position include the majority of those referred to in the ANZSCO description.
The applicant advertised the position in September 2013 and continues to advertise on its website[1]. The applicant’s representative claimed at the hearing that it is very difficult to fill these positions. The online advertisement states that :
Your main responsibilities will include all tasks and duties commensurate with the position of Horticultural Technical Officer. It will also include other aspects of vegetable production, ground preparation, planting, harvest, crop monitoring, spraying and also collecting and collating data for research purposes.
[1] >
The Tribunal also notes that the job description attached to the contract of employment includes many of the tasks listed in the ANZSCO description.
The delegate considered that the actual tasks of the position were more akin to those of a farm worker. The Tribunal has had the advantage of the provision of a great deal more information about the position than was before the delegate.
At the hearing the applicant’s representative gave a comprehensive account of the nominee’s tasks, which were consistent with those of the ANZSCO position. The Tribunal also observed that the applicant was one of four companies that participated in trial research by IPM Technologies of biological pest control methods for brassica crops. The applicant’s representative confirmed its participation in this trial and that the nominee was and is involved.
The Tribunal also spoke to the nominee, who provided evidence that he has successfully completed a Diploma of Production Horticulture. He told the Tribunal that his family had a vegetable farm in India and he was familiar with some of the work. He said he had worked for the applicant for five years and has gradually undertaken more responsible duties. He gave credible evidence as to his duties which include checking the crops for weeds and diseases, soil testing, developing new methods for fertilising, spraying, checking that the produce meets relevant specifications, participating in research trials and collecting data.
The QA Manager for Fresh Select, to whom the applicant supplies its produce, also gave evidence. She told the Tribunal of the rigorous quality control required before the produce is accepted. She stated that the nominee has undertaken training in these requirements and she deals with him regularly. Among other things, she said he maintains pest control records and is responsible to sign off that all things required to be done have been done.
Later correspondence was received from the applicant’s Agronomist who stated that he has been involved with training and educating the nominee in all aspects of vegetable crop production and agronomy and that he has become skilled in identifying crop nutrient deficiencies and disease/pest identification and is an integral part of the applicant’s operation. He confirmed that the nominee collects samples for soil and leaf testing and that soil and tissue test results are discussed and that they assist in determining appropriate nutrition and spray programs.

On the basis of the above evidence the Tribunal is satisfied that the nominated position is much more complex than that of a farm worker (841611) or a vegetable farm worker (841214), which ANZSCO describes as Skill level 5 requiring an AQF certificate 1 and as comprising tasks including routine crop cultivation and/or performing routine tasks on vegetable farm. Conversely, the applicant’s Diploma qualification is identified on the government’s training.gov.au website as falling under ANZSCO code 121200, Crop Farmer. ANZSCO describes this occupation as Skill level 1 (requiring a degree or higher qualification) and its tasks as involving (among other things) the planning, organising controlling, co-ordinating and performing farming greenhouse and market garden operations. The Tribunal considers these latter tasks are of a higher level than those performed by the nominated position.
On balance therefore, the Tribunal accepts that the nominated position is most correctly identified as an Agricultural Technician, as it does encompass a majority of the tasks described in ANZSCO code 311111. The Tribunal considers that the fact that it also performs some lower level duties such as harvesting, supervising packing and cleaning, does not derogate from this characterisation. There appears to be no other occupation in ANZSCO or as specified in the relevant legislative instrument (or not specified) that more closely encompasses the duties of the nominated position.
Therefore, on a qualitative analysis as endorsed by the Court in Cargo v MIBP (above), the Tribunal accepts that the position is most accurately characterised as an Agricultural Technician and that it is a genuine position.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified as an exempt contract.
The applicant has given a copy of the employment contract for the nominee to the Minister and to the Tribunal.
Therefore the requirements of r.2.72(10)(h) are met.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
In this case, the application was made before November 2013 and therefore these provisions do not apply.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
CONCLUSION
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Mary-Ann Cooper
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.