1414671 (Migration)

[2015] AATA 3287

1414671 (Migration) [2015] AATA 3287 (17 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dragon Spirit Pty Ltd

CASE NUMBER:  1414671

DIBP REFERENCE(S):  BCC2014/1081672

MEMBER:Jennifer Ciantar

DATE:17 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 17 August 2015 at 1:13pm

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 8 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 29 April 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 visa application specifies that the nominated occupation is that of Cook ANZSCO 351411.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10(aa) because the delegate was of the view that Dragon Spirit Pty Ltd trading as KC’s pies and Pastries is a fast food casual dining outlet and therefore the occupation does not correspond to an occupation specified in the relevant instrument, IMMI 13/066.

5. The applicant appeared before the Tribunal on 15 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

7. The applicant stated that she is the owner of the business, which she took over about four years ago and it has been primarily a fast food and take away outlet. However, since February last year, she has leased premises nearby, which contain room for about 15 tables that would seat approximately 50 people. These premises used to operate as a restaurant and the applicant intends to open a restaurant on this site. However, she has been unable to do so as she does not have a second cook. Although she has employed three cooks and a pastry chef through the Subclass 187 program, two of the cooks left when they finished the required two years employment, a pastry chef has given notice and only one cook, who has about 12 months remaining of their 2 years commitment, remains in the applicant’s employment. The applicant stated that her business is located in a mining town, which is about a one hour 45 minute drive from Mackay. It is extremely difficult to attract and retain staff to such an isolated location. She intends to replace the pastry chef and has located another student with pastry chef qualifications but she will need to lodge a new nomination for this position.

8. The applicant stated that the nominee currently holds a student visa but is an experienced cook; she has worked as a cook, for 20 hours per week, during the 4 to 5 years that she has been in Australia. The applicant cannot recall exactly how she met the nominee who is located in Brisbane but she went to Brisbane where the nominee demonstrated her cooking skills and the applicant checked the nominee’s references. She last spoke to the nominee about three weeks ago when she indicated that she is still available to take up the position. The applicant wants to employ a Subclass 457 visa holder as they would be required to make a four-year commitment to their employment.

9. The applicant stated that she did advertise for a Cook in the Mackay newspaper on two occasions and the advertisements probably cost her around $300. In the past, when lodging nominations for Subclass 187 visa applicants, she provided evidence to the Regional Council about the effort she had made to recruit suitable applicants, all of which were unsuccessful. Apart from advertising in the newspaper in Mackay and sometimes in the local paper, the applicant also tries to recruit through word of mouth by speaking to friends in the hospitality business about whether they know people looking for employment. The applicant stated that she cannot recall whether she provided the Department with copies of the advertisements but she would probably be able to provide the Tribunal with copies of the advertisements, if required.

10. When asked about her plans regarding new premises, the applicant stated that she wants to extend the opening hours of the business to 8:30pm; currently the business closes at 2:30pm. She wants to be able to offer a dinner service. She might apply for a liquor licence. She is not sure yet whether customers would order and pay for meals to be consumed on the premises prior to seating themselves at a table or whether table service would include the issuing of bills to the table after customers had finished their meals. Customers who eat on the premises will be served on china crockery with stainless steel cutlery and the applicant has already purchased the crockery and cutlery, which is currently in storage. She intends to hire two young persons from the local area who would work as waiters but might also assist in the kitchen. The Tribunal noted that the photos provided indicate that there are tables outside the premises as well as internal seating. The applicant stated that the outside tables are owned by Council and would primarily be used by customers who had purchased takeaway food. There are no other restaurants nearby.

11. The applicant stated that the menu she provided to the Department and the Tribunal is an example of the type of food that she expects would be available at the new premises. Currently, she only offers about two Chinese meals. She wants to employ the nominee as she has experience in preparing Italian food and in cooking steaks, and the applicant wants to be able to offer Italian food, steaks and also a broader range of Asian meals. As the business is not yet operating in the new premises, the applicant does not know what proportion of customers will prefer to eat on site compared to the number of customers who would buy takeaway meals. The applicant stated that she leased the new premises because she receives regular enquiries from customers about whether she could open a business that provided an extended menu and seating rather than only offering a takeaway food service. The applicant anticipates that there would be a period of overlap when the takeaway business and the new premises were open concurrently until customers became familiar with her new location. She would then close the existing takeaway business, as she could not afford to run both concurrently for an extended period. However, she still anticipates that the business would open from 2am so that an early morning food service can be provided. The business is renowned for its pies. It also has a van which takes pies and some other products out to industrial areas for sale each day from 6:30am until 2pm. The takeaway service currently operating offers pies, pastries, roast beef, pasta, two Chinese dishes, hamburgers, sandwiches, fish and chips, chicken and cakes.

12. The applicant stated that she pays the cook she currently employs between $39,000 and $41,000. This cook has worked for her for about one year. The Tribunal put to the applicant that she is proposing to pay the nominee over $50,000 per annum. The applicant stated that the nominee is more experienced and would also make a commitment to stay for four years.

13. The applicant also stated that she was approved as a standard business sponsor on 13 May 2014.

14. Also on 15 May 2015 the applicant provided the Tribunal with additional information. It was submitted that previously 4 delegates approved the nomination of cook/pastry chef for the current premises but the last delegate decided the business is a take away food outlet and cooks in such businesses are precluded under IMMI 13/066. The business is situated in Moranbah, a mining town in regional Queensland, which has been drastically affected by the down turn in the mining industry. The applicant foresaw the downturn and prudently decided to lease new premises since February 2014. However, the new premises have not opened as a cook is required until 8.30pm and there are no suitable local candidates. The current operation only has 1 cook. The business is not only a fast food outlet as it also sells restaurant meals as shown in the menu. If the nomination is not approved the applicant might withdraw from Moranbah which would adversely affect local employees and the regional town’s economy.

15. The applicant provided a list of the 4 previously approved nominations, the ASIC record of registration, a copy of the lease for the new premises, a copy of the menu, photographs of the business, and a business plan dated 28 April 2015.

16. On 13 July 2015 the Tribunal wrote to the applicant and invited her to provide information about the visa holder, applicant or proposed applicant for the visa who will work in the nominated occupation. The letter indicated that the nominee, Karunna Maharjan, has been granted a Subclass 457 visa to work for a different sponsor and visa conditions are likely to preclude her from changing positions for a period of time. The Tribunal also invited the applicant to provide information about whether any cook currently employed by the business is an Australian citizen or permanent resident and information about their annual earnings and base rate of pay. The letter stated that the applicant had told the Tribunal that she pays the cook she currently employs between $39,000 and $41,000 per annum. However, r.2.72(10(cc) requires that 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) of $53,900 specified in the instrument IMMI 13/028 (which recommenced following disallowance by the senate on 16 June 2015 of 15/050).

17. The applicant did not respond by the end of the prescribed period but on 4 August 2015 the applicant’s representative rang and requested an extension. The Tribunal advised it was too late to request an extension but any information provided until the time of decision would be taken into account. The representative stated he would send a submission by Friday at the latest. However, no further information was received.

18. As the applicant did not provide the information requested in the Tribunal’s s.359(2) letter or within the extended period, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40. The Tribunal is satisfied that the applicant has been given a reasonable opportunity to address the relevant issues in this case.

19. In the circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the review application.  Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) to adjourn the review any further and has determined to make a decision without taking any further action to obtain the information in accordance with s.359C of the Act.

20. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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).

22. The Department’s decision was made on the basis that the delegate found that the applicant did not satisfy r.2.72(10)(aa) as the delegate was not satisfied that the position associated with the nominated occupation corresponded to an occupation specified in the relevant instrument. As noted above, in order to be approved, a nomination must satisfy all the applicable requirements in r.2.72(10). In this case, it has become apparent that there is another subparagraph of r.2.72 that is relevant to the outcome of the review. This is r.2.72(10)(cc), which requires that 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 relevant instrument, currently $53,900 per year.

    Base rate of pay

23. 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 TSMIT specified in the instrument IMMI 13/028, which specifies that the TSMIT threshold is $53,900.

24. 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.

25. 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 of $250,000: r.2.72(10AB).

26. On the basis of the evidence provided, the Tribunal finds that the nominee’s base rate of pay is $53,900 and annual earnings are $58,886. Therefore, the nominee’s annual earnings are less than the income threshold exemption in r.2.72(10AB) of $250,000.

27. The nomination application states that there are no Australian employees performing equivalent work. However, the applicant provided oral and written evidence to the Tribunal that she has employed a number of cooks as a result of the Department previously approving nominations and she currently employs at least 1 cook. The organisation chart indicates that the business employs a cook and a pastry cook on a full-time basis and that they are permanent residents. The applicant also gave evidence that the cook she currently employs was employed through the Subclass 187 program and this person has about one year remaining of the 2 years employment commitment. The Tribunal therefore finds that the applicant employs a full-time cook who is a permanent resident or citizen and that this person performs equivalent work.

28. Although the nomination application indicates that the Australian employee is, or would be, paid the same base rate and annual earnings as the nominee, the applicant gave oral evidence that the cook she currently employs is a Subclass 187 visa holder who is paid between $39,000 and $41,000 per annum. The applicant confirmed orally that she intended to pay the nominee more because as a Subclass 457 visa holder, the nominee would make a commitment to work in the business for 4 years rather than the 2 years commitment required by the Subclass 187 program. After the hearing the Tribunal invited the applicant to provide information about the annual earnings of the cook currently employed and the letter referred to the requirements of r.2.72(10(cc). The applicant has not responded to the Tribunal’s invitation and the Tribunal therefore makes its findings on the basis of the oral evidence provided at hearing. The Tribunal finds that the cook currently employed in the business earns between $39,000 and $41,000 per annum. The evidence therefore indicates that the Australian permanent resident equivalent employee has a base rate of pay that is less than the TSMIT.

29. The Tribunal is not satisfied on the evidence available that 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 (performing equivalent work at the same location) will be equal to or greater than the TSMIT specified in the instrument IMMI 13/028 of $53,900. Accordingly, the Tribunal is not satisfied that the requirements of r.2.72(10)(cc) are met. Nor can it be satisfied that the annual earnings that are provided to an Australian citizen or permanent resident performing equivalent work at the same location are greater than the TSMIT of $53,900. Accordingly, the Tribunal is not satisfied that the requirements of r.2.72(10)(cc) may be disregarded as provided for by r.2.72(10)(A).

30. For these reasons the Tribunal cannot be satisfied that the requirements of r.2.72(10)(cc) are met.

31. For the reasons given above, the Tribunal is not satisfied that the applicant meets all the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

32. The Tribunal affirms the decision not to approve the nomination.

    Jennifer Ciantar
    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.