1412818 (Migration)

[2015] AATA 3575

1412818 (Migration) [2015] AATA 3575 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Golden Faith Group Pty Ltd

CASE NUMBER:  1412818

DIBP REFERENCE(S):  BCC2014/1349339

MEMBER:Karen Synon

DATE:29 October 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 29 October 2015 at 12:20pm

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 16 July 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 31 May 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 r.2.72(10(f) because he was not satisfied that there is a genuine need for the position of ‘Marketing Specialist’ necessary for the business.

4.The applicant applied for review of the primary decision on 23 July 2014 and provided a copy of the department’s decision to the Tribunal.

5.The applicant was represented in relation to the review by its registered migration agent.

6.In making its decision the Tribunal has considered all of the information before it including information received on 1 June 2015, in response to an invitation issued in accordance with s.359(2).

7.In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

8.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

9.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

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

11.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 - ‘Marketing Specialist’ and/or 6 digit ANZSCO code, since the applicant is a standard business sponsor: r.2.73(4A).

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

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

13.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.

14.The Tribunal finds, on the basis a copy of the department’s ‘Notification of Approval’ letter dated 7 August 2013, that the person making the nomination is a standard business sponsor having been approved 7 August 2013 with the period of approval ending on 7 August 2016.

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

Identification of the nominee

16.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.

17.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.

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

Requirements for existing Subclass 457 visa holders

19.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.

20.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

21.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.

22.The applicant clearly identified in the application form that it was nominating a ‘Marketing Specialist’ to work at 416/530 Little Collins Street, Melbourne, Victoria, 3000.  Further, the relevant ANZSCO code (225113) was specified in the accompanying submission.  The Tribunal is therefore satisfied the applicant has provided the name of the occupation and the corresponding 6-digit ANZSCO code.

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

No adverse information known to Immigration

24.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).

25.The Tribunal has had regard to the Department’s records and notes that the applicant has successfully sponsored a person in the nominated occupation of ‘Accountant’.  This nomination was approved on 12 February 2014.  There is no adverse information recorded on the Department’s electronic records to which the Tribunal has the access and nor has the Department advised the Tribunal of any adverse information in relation to the applicant.

26.As 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', the requirements of r.2.72(9) are met.

Specified occupation

1. 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).

2. The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of ‘Marketing Specialist’ and the corresponding ANZSCO Code 225113 appear on the relevant instrument.  The instrument does not require that the nomination be supported in writing by a specified organisation.

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

   Terms and conditions of employment

   30.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.

   31.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.

   32.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).

   33.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. The amount of earnings currently specified by the instrument is $250,000: r.2.72(10)(AB).

   34.The evidence before the Tribunal contained in the Contract of Employment signed and dated 26 May 2015, is that the visa applicant will be paid a base salary of $56,000 exclusive of superannuation.  This is the same salary specified on the application form.

   35.The applicant, in a submission to the Tribunal, stated that the position of ‘Marketing Specialist’ is a new one in the company.  Therefore there is no Australian citizen or permanent resident performing equivalent work at the same location.  As there is no Australian equivalent performing equivalent work at the same location the Tribunal has considered the methodology specified in IMMI 09/113.

   36.By reference to this instrument the Tribunal finds that there is no fair work instrument, State industrial instrument or transitional instrument applying to the nominated occupation and the methodology in schedule a, sub item 2 (one) is not applicable.  Thus the Tribunal must instead have regard to “relevant information” in determining the terms and conditions that would be provided to an Australian equivalent employee. 

   37.The Tribunal has consulted PayScale[1] which indicates that the median salary for a ‘Marketing Specialist’ is $55,545 with a range of $48,146 to $80,938. [2]  It notes that 89% of people occupying this position have between 1 and 9 years’ experience in the job.[3]  The Tribunal accepts that the proposed commencing salary of $56,000 is appropriate to the visa applicant’s experience.

   [1] < accessed 28 October 2015.

   [3] < accessed 28 October 2015.

   38.Notwithstanding the broad salary range indicated on PayScale, and the differing tasks and industries within which such a position could be located, the Tribunal is satisfied that the proposed terms and conditions of employment for the nominated position are no less favourable than the earnings and terms and conditions that are provided, or would be provided to an Australian citizen or permanent resident performing equivalent 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, 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.

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

   42.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.

   43.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).

   44.The Tribunal finds that the nominee’s annual earnings are not less than $56,000. It further finds, by reference to the evidence referred to above, that an Australian equivalent employee would earn in the order of $55,545 as a base annual salary. As the base rate of pay of $56,000 for the nominated position exceeds the current TSMIT of $53,900, the Tribunal finds that r.2.72(10)(cc) is satisfied.

   Requisite certification

4. 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 15/092;

   ·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;

   ·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 15/092.

   46.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.

   Position must be genuine

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

   48.The delegate was not satisfied that the nominated occupation was genuine after having regard to the size and scope and the fact that it has 9 staff.

   49.The applicant, in nominating the occupation of Marketing Specialist, designated the occupation as Marketing Officer.

   50.The Tribunal notes that the organisation is represented online as providing “immigration and citizenship services”.  The Tribunal further notes that the ‘Golden Faith Group Pty Ltd’ is listed by the Department as an Australian registered migration agent participating in electronic visa application lodgements.[4]  Its website[5] which is published in Mandarin[6] lists its three offices as: Melbourne (head office), Changzhou and Jinan.  It also outlines a comprehensive range of visa, migration and education exchange services.  The website lists the nominee as a Group Manager at Changzhou.  Information provided to the Tribunal by the applicant also records another offshore office in Dailan.

   [4] < And translated with Microsoft’s Translator Help - < applicant submits that the company is undergoing expansion and that its major approach is the “further exploitation of the Chinese-based market on our existing offshore offices” with the plan to set up more overseas offices in China and specifically to [the] targeted locations of Shandong and Guangdong.  The applicant submitted that the Golden Faith Group “is confronted with rare development opportunities and challenges [and] in order to seek new business chances and attract more clients, a permanent full-time Marketing Officer is urgently required.  It is proposed that the Marketing Specialist will develop, execute and manage both internal and external marketing processes and functions and will be responsible for identifying and developing market opportunities for new and existing services, seeking potential corporative projects for future development, presenting investment seminars and promotion activities to attract potential customers and carry out marketing media communication assignments.  The Marketing Specialist will also develop a marketing strategy and plan for the company along with strategies to promote the company’s services and projects to as many people as possible, both to increase the business’ image build public reputation.  This is a new position at the head office location.  Although there are marketing staff in offshore offices has been no specialised marketing focus in Melbourne.

   52.The Tribunal notes that the proposed nominee’s job description specifies the overall purpose of the position as to:

   Develop, execute and manage both internal and external marketing opportunities processes and functions.  Activities will include: identify and develop market opportunities for new and existing service, implementation of marketing pieces for a variety of activities, such as campaigns, seminars and events. The position is required not only to oversee marketing activities to [the] Melbourne office but provide strong support overseas partner offices.

   53.In considering this issue the Tribunal has also had regard to the skills and experience of the proposed nominee.  It notes he has a four-year Diploma of English in International Trade and that he is currently employed as a Marketing manager for the applicant in its Changzhou office.  Prior to this he was employed from January 2012 as a Marketing Officer in the same office.  He would therefore bring to the nominated occupation relevant and recent experience in the marketing of international migration and education services and a thorough knowledge of the company’s offshore operations.  The Tribunal further notes that the Job Description provided is extremely detailed and it is envisaged 25% of the nominee’s time will be dedicated to creating and maintaining partnership relationships and providing marketing support to overseas partner offices.

   54.Based on the evidence before it the Tribunal is satisfied that the business does have a genuine need for a full time Marketing Specialist and considers that the occupation’s specific orientation toward building market share in both Australia and China is entirely appropriate within the context of the business, its size and scope.

   55.The Tribunal is therefore satisfied that the position associated with the nominated occupation of Marketing Specialist is genuine and that 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 Tribunal notes the applicant provided to the Department (and also to the Tribunal) a Contract of Employment for the nominee setting out the main terms and conditions of employment which is signed and dated May 2014. For these reasons the requirements of r.2.72(10)(h) are met.

   Labour Market Testing

   58.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.

   59.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.

   60.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.

   61.In this case, the nominated occupation is ‘Marketing Specialist’ (ANZSCO Unit Group 2251).  This occupation is classified as Skill Level 1 in the ANZSCO dictionary.  Skills level I designated occupations are exempt under IMMI 13/137.  Therefore evidence of labour market testing is not required.

1. For these reasons, the labour market testing requirements in s.140GBA are not applicable.

   Work agreements

   63.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.

   64.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.

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

   DECISION

   66.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.