1406138 (Migration)

[2016] AATA 3748

1406138 (Migration) [2016] AATA 3748 (19 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Swan Taxis Pty Ltd

CASE NUMBER:  1406138

DIBP REFERENCE(S):  BCC2014/240012

MEMBER:Sue Raymond

DATE:19 April 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 19 April 2016 at 10:32am

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 13 March 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 21 January 2014. 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)(aa) because the delegate was not satisfied that the tasks of the position are consistent with the tasks of the nominated occupation as listed in the Australian and New Zealand standard classification of occupations (ANZSCO). The delegate was of the view that the tasks of the nominated position are more closely matched to ANZSCO 599914, Radio Despatcher than the proposed occupation of Communications Operator ANZSCO 342312.

4. The applicant appeared before the Tribunal on 4 February 2015, via its Operations Manager, Mr Eoghain O’Brien, to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Chudasama.

5. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing. The hearing was conducted by video link with the applicant, witness and representative appearing in Perth and the member in Adelaide.

6. Following the hearing further submissions were received from the representative in March 2015. The Tribunal regrets the delay in the finalisation of this matter. There has been further delay in the finalisation of the matter since October 2015 as the sponsorship approval (which was essential for a favourable outcome with this application) had lapsed and the Tribunal was notified of the latest approval on 13 April 2016.

7. 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

8. 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).

9. Having regard to the decision record of the delegate, and the basis for not approving the nomination, I will first consider whether the applicant meets the requirements of subclause 2.72 (10)(aa). This requires me to consider whether the nominated occupation and its corresponding six digit code correspond to an occupation and six digit code specified in the relevant instrument specified by the Minister. IMMI 15/072 is the relevant instrument in this case as it is the one currently operative (in any event the relevant occupation was included in the earlier instruments).

10. In this regard, I find that Communications Operator ANZSCO 342312 is an occupation and the associated six digit code specified in that instrument for the purpose of this subsection. I observe that the occupation of Radio Despatcher ANZSCO 599914 is not specified in the relevant instrument.

11. My task is to determine whether the nominated occupation corresponds to an occupation in the applicable instrument. Such a judgment must inevitably compare what the nominee does in the nominated position against that that of the occupation of Communications Operator ANZSCO 342312[1].

    [1] Nguyen and Vu Publishers Pty Ltd v Minister for Immigration and Anor [2013] FCCA 1697 at paras. 37 and 38

12. In considering this matter I have taken into account the content of the ANZSCO dictionary for the occupation of a Communications Operator and note that it is within the Unit Group 3423 entitled “Electronics trades workers”. I have also had regard to the ANZSCO dictionary for the occupation of a Radio Despatcher 599914 and note that it comes within the Unit Group 5999 “Other Miscellaneous Clerical and Administrative Workers”.

13. I accept that Mr O’Brien represents the applicant company and can speak on its behalf at the hearing. I found Mr O’Brien to be an impressive witness, whose knowledge of the business and the nominee’s work in it, was evident. I accept that he has regular dealings with the nominee (almost hourly) and therefore is in a good position to provide evidence about the particular duties of the nominated position.

14. The applicant company, Swan Taxis Pty Ltd, operates a large fleet of vehicles. In a written submission provided to the Tribunal, the applicant indicates that the nominee has responsibility for managing up to 30 telephone operators, 1700 taxis and 5000 taxi drivers. Mr O’Brien described the company’s structure as headed by a CEO and Board of Directors. Beneath the CEO is his own position of Operations Manager and there is also a Finance Manager. Within the operations team, for which Mr O’Brien is responsible, there is an IT department, an Operations department and a Call department, with heads appointed of each of those departments. The nominee’s position sits within the Call Centre department, underneath the head of that department who is a Call Centre Manager. There is a call centre manager, five shift supervisors (because of the 24/7 environment) and the nominee’s position as a Communications Operator. In addition, there are switchboard operators (receptionists) and telephonists (111) who take bookings. There are two radio despatchers per shift. There are five electronic engineers who are specialists and part of a different department within Swan Communications (Swan Comm). That team is a separate team to the operations team. It is a separate entity of the operation.

15. The nominee has worked with Swan Taxis for eight years-starting in the call centre and has held a number of different positions before undertaking his current role. The nominee works full-time in this position. There are three communications operators who have a combination of technical and operational experience. The positions existed prior to Mr Chudasama working in the position. He has worked in the position for approximately two years at the time of the hearing.

16. Based on the documentary and oral evidence before me, I am satisfied that the duties of the nominated occupation differ from that required of a Radio Despatcher. The issue I have is in determining whether the duties “correspond” with that of a Communications Operator. The ordinary dictionary meaning of “correspond” taken from the Macquarie Dictionary means “verb(i) 1. (Sometimes followed by with or to) to be in agreement or conformity: his words and actions do not correspond. 2. (Sometimes followed by to) to be similar or analogous; the equivalent in function, position, amount, etc.” I have had regard to that definition in considering this criterion and regard the definition as the ordinary meaning of the word “correspond.”

17. I note that the occupation in the ANZSCO dictionary is a skill level III which is commensurate with having a AQF Certificate IV or Certificate III, including on-the-job training. At least three years of relevant experience may substitute for formal qualifications. I note from the ANZSCO dictionary that the occupation of Communications Operator is in a group of occupations dealing with technicians and trade workers. The description of Communications Operator specifically describes it in the following way: “transmits and receives radio messages by use of Morse code, voice and radio telemetry type”. Examples of specialisations are Communications and Information systems positions in the navy, air force and army.

18. In considering the position, I have placed significant reliance upon the documents supplied by the applicant which set out the duties of the nominee against the tasks of Communications Operator drawn from the ANZSCO dictionary. In particular I note the document at folio 57 and the reverse side of folio 58 on the Tribunal file. In analysing the tasks undertaken by the nominee in the position I note as follows:

    ·    the nominee is involved in the co-ordination and assists with radio testing and GPS and data strength testing.

    ·    the nominee maintains an in-depth knowledge of the operational aspects of the MTDATA system and is often called upon by both IT and Operations to assist with trouble shooting and testing. 

    ·    the position co-ordinates and assists in transmitting of road hazard messages via MTDATA systems. This involves understanding the transmission messages and correcting any transmission errors and resending via text, GPS or radio channel.

    Whilst the position is not involved in installing electronic instruments and control systems nor in applying knowledge in commissioning and maintaining control systems, I have formed the view that the nominated occupation and its corresponding 6 digit code correspond to the occupation of Communications Operator 3342312 specified in Instrument 15/092. Consequently, the requirements of r.2.72(10)(aa) are met.

19. As the Tribunal has reached a different conclusion to that of the delegate, it must proceed to consider the other criteria for a nomination. I record that the requirement for the Tribunal to undertake this further analysis arises because of the limitation on the nature of its powers in section 349 of the Act and regulation 4.15 of the Regulations. In their current terms, the Tribunal is unable to remit the matter to the department with a direction that r.2.72(10)(aa) is satisfied.

    The nomination must comply with the prescribed process

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

21. The Tribunal is satisfied of the following matters based on its inspection of the departmental file which are the requirements applicable if the applicant is a standard business sponsor.

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

    ·The applicant identifies in the nomination a proposed applicant for a Subclass 457 visa, namely Mr Chudasama, as the person who will work in the occupation: r.2.73(1A)(b);

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

    ·The applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5); and

    ·The nomination includes the location at which the occupation will be carried out, and the name of the occupation, Communications Operator: r.2.73(4)/(4A).

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

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

23. 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. Based on the latest documentary evidence provided to the Tribunal on 13 April 2016, I am satisfied that the applicant company was approved as a standard business sponsor for the period 12 April 2016 to 12 April 2021.

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

    Identification of the nominee

25. Relevantly, regulation 2.72(5) requires that the applicant identify in the nomination the applicant for the visa, who will work in the nominated occupation. Based on the information contained in the departmental file, I am satisfied that the nomination identifies the visa applicant, Mr Chudasama, as the nominee for the position of Communications Operator.

26. For these reasons the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

27. 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. Although the nomination indicates that the nominee already holds a subclass 457 visa, the departmental movement records available to the Tribunal indicate that he does not. Consequently, 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

28. The nomination was made on or after 1 July 2010 so regulation 2.72(8A) is applicable and relevantly, 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;

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

29. The nomination documentation records the name and ANZSCO number of the occupation-Communications Operator and on the 1196 form the code, 342312. The location of the business of Harvey Street, Victoria Park, Western Australia is nominated as the address where the nominee will be employed.

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

    No adverse information known to Immigration

31. 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).

32. There is no information before me to indicate that there is any adverse information. The Operations Manager gave sworn evidence at the hearing to that effect and provided a written statement to the Tribunal confirming same. In the absence of any contrary information, I so find.

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

    Terms and conditions of employment

34. 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.

35. 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.

36. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI13/028: r.2.72(10)(AB).The relevant annual earnings in this provision are $AUD250,000. This provision is not applicable in the current case.

37. The applicant has indicated that there are Australian equivalents performing similar work. The applicant provided pay slips of two other employees[2] who are performing similar work. Based on the evidence before me I conclude that the nominee’s annual salary is now $54,992 per annum, increased from $53,984 at the time of the application. I note that his hourly rate is $27.83[3], slightly higher than that of the two comparable employees, apparently because of his longer service with the company. I have had regard to the terms of a contract for the nominee dated 22 December 2013 which sets out the salary and conditions (although noting that the salary has now increased). The amount specified in the contract is $54000[4] but this has now been increased.

    [2] Folios 105 and 108 of the Tribunal file

    [3] Payslip at folio 104 of the Tribunal file

    [4] Folio 127 of the Tribunal file

38. Based on the evidence before me, I am satisfied that the terms and conditions of employment of the nominee are no less favourable than the terms and conditions that are provided to an Australian citizen or permanent resident performing similar work at the same location.

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

    Base rate of pay

40. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are 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. This amount is AUD$53,900.

41. However, this requirement may be disregarded or not applicable as outlined in subparagraphs (10AB) and (10A). This requires an annual earnings threshold of AUD 250,000 which is not applicable in this case.

42. I find that the base rate of pay for the one of the Australian equivalents is $27.45 per hour which equates to $54,241 per annum. That annual figure is greater than the TSMIT threshold in IMMI 13/028. The other person had a rate of $27.50 per hour which also equates to an annual figure above the TSMIT threshold.

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

    Requisite certification

44. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). relevantly 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 relevant instrument;

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business of the applicant; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.

45. Based on the declaration at question 61 of 1196[5] form and the certification on page 5 of the online form[6]in the application form, I find that that the above matters are certified. For these reasons the requirements of r.2.72(10)(e) are met.

    [5] Folio 9 of the departmental file

    [6] Folio 5 of the departmental file

    Position must be genuine

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

47. On the basis of the evidence and material outlined above in relation to subcriterion 2.72 (10)(aa), I find that the position associated with the nominated occupation is genuine.

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

    Employment under contract

49. 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 an instrument in writing for the purpose of this sub-paragraph. There is currently no such instrument and so a written contract is required. A written contract is in existence[7].

    [7] Refer to footnote 4

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

    Labour Market Testing

51. 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.

1. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:

   ·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

   ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

2. The evidence of labour market testing that must accompany the nomination relates to information of attempted recruitment, and includes details, fees and expenses of advertising for the position or similar positions, but may include other information such as the sponsor’s participation in relevant job and career expos, details of fees, expenses and results for recruitment attempts. A sponsor may also provide recent evidence about labour market trends, government support, or other evidence specified by the Minister. However, if this non-mandatory evidence and information is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

3. There is no relevant exemption in place. In the nomination form[8] the applicant indicated that the company had undertaken labour market testing in 2014 and that the business had advertised the nominated position or similar positions recently (in the context of the time of application). The relevant period is a period of 12 months as prescribed in the relevant instrument [IMMI 13/136]. The applicant indicated that the applicant had not made any retrenchments or redundancies in the last four months (prior to the application). The nomination was accompanied by evidence of the testing (s.140GBA(3)(b)) which although scant, evidenced an advertisement in seek.com indicating that 75 applications were received and one was hired. It outlined the expense of advertising. The applicant submitted in the application form that the business had tested the Australian labour market to ensure that there were no suitably qualified Australian citizens or permanent residents readily available to fill the position.

   [8] At folios 3-6 of the departmental file

4. For these reasons, the labour market testing requirements in s.140GBA are met.

   Work agreements

5. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). These provisions are not applicable as the applicant is not a party to a work agreement. the requirements of the work agreement have been met (r.2.72(12)).

6. For these reasons the requirements of r.2.72(11) and (12) are met as they are not applicable.

7. 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.

   Sue Raymond
   Senior Member

   
   

   ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   2.72 Criteria for approval of nomination — Subclass 457…

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

   (a)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.