1414312 (Migration)

[2016] AATA 3615

1414312 (Migration) [2016] AATA 3615 (29 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Xi Amanda Zhang

CASE NUMBER:  1414312

DIBP REFERENCE(S):  BCC2014/880172

MEMBER:Mary-Ann Cooper

DATE:29 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 March 2016 at 10:49am

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 August 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 March 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 s/he was not satisfied that there was a genuine need for the position.

4. The applicant appeared before the Tribunal on 11 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

   The nomination must comply with the prescribed process

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

9. 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)).

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

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

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

12. The applicant has provided to the Tribunal evidence of its approval as a Temporary Business Entry Standard Business Sponsor in the form of a copy of a Sponsorship Approval Notice issued to it by the Department of Immigration and Border Protection on 10 April 2014. The approval notes that it is in effect for 3 years.

13. 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

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

15. In its application the applicant has identified Ms Lu as the applicant for a Subclass 457 visa who will work in the nominated occupation.

16. On this basis, the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

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

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

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

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

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

18. Departmental records confirm that the nominee is not a Subclass 457 visa holder.

19. 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

20. 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.

21. The applicant stated in the nomination application form that the nominated occupation is Café and Restaurant Manager and provided the ANZSCO code 141111. The location at which the occupation is to be carried out in Victoria has also been specified.

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

    No adverse information known to Immigration

23. 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).

24. There is no evidence before the Tribunal which indicates 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’. At the hearing the applicant’s director confirmed that there was no such information.

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

    Specified occupation

26. 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).

27. The nominated occupation of Café and Restaurant Manager and corresponding code 141111 appear on the relevant list in the relevant instrument. The instrument does not require that the nomination be supported in writing by a specified organisation.

28. 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

29. 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.

30. 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.

31. 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).

32. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB).

33. The nominee’s base rate of pay is $54,600.00, plus superannuation. The relevant instrument, IMMI 13/028, specifies the threshold at $250,000.00. 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).

34. On the evidence before the Tribunal, it accepts that there is no equivalent Australian citizen or permanent resident performing an equivalent role to that of the nominated occupation of Restaurant Manager. In this regard, the Tribunal notes the evidence that the proprietor, Ms Zhang, is presently performing some of the tasks and duties of a Restaurant Manager as part of her other managerial responsibilities. The Tribunal does not consider that evidence concerning her remuneration would be probative of this question, both in view of her other managerial duties and her status as a proprietor in the business.

35. The Tribunal must accordingly use the methodology prescribed in IMMI 09/113 for the purposes of r.2.72(10AA).

36. Although a contract of employment and a covering letter dated 11 March 2013 suggests that annual leave is provided in accordance with the Hospitality Industry Award, on the nomination application form the applicant has indicated that the type of employment agreement that would apply to an equivalent Australian employee would be an individual agreement. The question concerning whether an award applies is answered in the negative. The applicant confirmed this at the hearing.

37. The Tribunal accordingly proceeds on the basis that there is no award governing Café or Restaurant Managers applicable in these circumstances and it has accordingly had regard to relevant information, as defined in the instrument to include information from the government’s Job Outlook website[1]. At the time of hearing, this listed an average weekly base salary in this occupation in the sum of $1050, amounting to $54,600 per annum. The Tribunal has also take into account information from Payscale[2] indicating a salary range between around $40,000 and $60,000. On the basis of the foregoing, the Tribunal is satisfied that the nominee, on an annual base salary of $54,600, is offered terms and conditions of employment which are no less favourable than those which would be provided to an Australian citizen or permanent resident performing the equivalent role of Cafe/Restaurant Manager.

    [1]

    [2]

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

    Base rate of pay

39. 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, which specified the current TSMIT to be $53,900.

40. On the basis of the contract of employment provided, the Tribunal accepts that the nominee’s annual earnings are $54,600. On the basis of job vacancy advertisements and Payscale data, the Tribunal finds that an Australian citizen or permanent resident performing the same role as the nominee would be remunerated at least an equivalent rate to that of the applicant.

41. Accordingly, the Tribunal finds that the annual earnings including the base rate of pay that would be offered to an Australian citizen or permanent resident performing equivalent duties at the same workplace at the same location, can be said to be higher than the TSMIT.

42. For these reasons the requirements of r.2.72(10)(cc) is met.

    Requisite certification

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

44. 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 relevant instrument;

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

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

45. The relevant written certifications are contained in the nomination application form.

46. 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. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant indicated that she needed the position because she wished to expand her business. The delegate noted the absence of any information supporting this claim and accordingly was not satisfied that there was a genuine need for the position. At the hearing the applicant told the Tribunal she had since had a child and she now wished to reduce her time in the restaurant and spend more time with her child. In order to do this she said she needs another person to undertake the duties of a fulltime Café and Restaurant Manager. The Tribunal considers her evidence in this regard plausible and also notes that the Department has previously approved a nomination for a Café and Restaurant Manager for the applicant’s business (in March 2011, Application ID 1505540055).

49. On this basis therefore of her current circumstances the Tribunal is satisfied that there is a genuine need for the position and the requirements of r.2.72(10)(f) are met.

    Employment under contract

50. 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 a relevant instrument. There is no current instrument.

51. As noted above, the applicant has provided a copy of the employment contract.

52. Therefore the requirements of r.2.72(10)(h) are met.

    Labour Market Testing

53. 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.

54. 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.

55. In this case, the nominated occupation is Café and Restaurant Manager, ANZSCO 141111. This occupation is classified as Skill Level 2 in the ANZSCO dictionary. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In addition, the position description for the nominated position indicates that the minimum required qualifications for the position are a qualification equivalent to an AQF Associate Degree, Advanced Diploma or Diploma or at least 3 years relevant experience. In these circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the labour market testing condition in s.140GBA.

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

    Work agreements

57. 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.

58. 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

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

    DECISION

60. 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.