1414800 (Migration)

[2015] AATA 3267

1414800 (Migration) [2015] AATA 3267 (31 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Top Tiling Services Pty Ltd

CASE NUMBER:  1414800

DIBP REFERENCE(S):  BCC2014/985775

MEMBER:Denise Connolly

DATE:31 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 31 July 2015 at 11:06am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by the delegate of the Minister for Immigration on 15 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 14 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 delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(c) of the Regulations.

4. Mr Jung Gu Hwang appeared before the Tribunal, on behalf of the applicant, on 1 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review by its 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).

   Evidence provided with application

8. When making the application the applicant provided the following information. The applicant nominated the position of Wall & Floor Tiler, ANZSCO 333411 (skill level 3). The nominee, Mr Dae Chan Kim, would be employed in Winnellie, 0820, Northern Territory. The applicant has an Australian employee performing equivalent work to the nominated occupation. The Australian employee is paid a base salary of $58,500. The nominee will be paid $96,500. The applicant claims labour market testing was undertaken on 4 July and 4 December 2013 and the position was advertised on 4 December 2013. Related paid invoices were provided.  It is claimed there were no applications for the position. The position requires the nominee to have a trade certificate or at least 3 years’ tiling experience.

9. The applicant provided a copy of advertisements and documents relating to the nominee’s qualifications, a certificate III in Wall and Floor Tiling issued in November 2012. It provided evidence in relation to the Australian resident employee, Mr Hyunil Lee, who holds a SC 119 visa granted on 1 March 2013.

10. The applicant also provided a copy of its contract with Mr Lee which provides a base salary of $58,500, and of a contract with the nominee which provides a base salary of $96,500.

11. The delegate’s decision record provided to the Tribunal by the applicant, records that the Department sought further evidence from the applicant regarding the terms and conditions of the nominee’s employment.

12. On 31 July 2014 the applicant provided to the Department a statement which advises that the contract with Mr Lee had been updated and he was then on a base salary of $85,758.  It provided two payslips for Mr Lee showing a fortnightly gross income of $3,298. It stated that the nominee would be paid $96,500 taking into account his skill level and experience. It claimed the nominee has rare expertise acquired during his extensive tiling experience in Australia and Korea. The applicant acknowledges that the salary is high but, considering their tiling work in the next few years will generate income of $7-8m, they are willing to offer him this salary. There is a shortage of tilers in the local labour market. The provided information about their current contracts indicating income of over $5m and tenders valued at over $7m. The applicant also provided a reference from a customer.

13. The delegate formed the view that as the salary for the Australian permanent resident was less than the proposed salary for the nominee, who would be undertaking the same duties, the terms are not equivalent and r.2.72.(10)(c) was not met.

    Hearing on 1 May 2015

14. Before the hearing the applicant provided:

    a.a reference for the nominee from Multibuild, a client of the applicant

    b.correspondence from Project Manager, Halikos, addressed to various parties including the applicant, concerning the progress and completion dates for various stages of a development project

    c.requests addressed to the applicant for quotes and tender documents.

15. At the hearing the Tribunal discussed with the applicant the requirements of r.2.72. It noted that the delegate had found that r.2.72(10)(c) was not met and explained that this was because, in the Tribunal’s view, the delegate had misinterpreted that requirement. It noted that, even if it found the applicant does meet r.2.72(10)(c) it needs to meet all the requirements set out in r.2.72(3) to (12) in order for the nomination to be approved.

16. The Tribunal discussed with the applicant the concern that there appeared to be very little information available to it regarding the business’ financial circumstances and employees. The Tribunal noted that the evidence before it indicates that a permanent resident employee, Mr Lee, is earning less than the applicant proposes to pay the nominee, Mr Kim.

17. The applicant told the Tribunal that Mr Lee is no longer working for the business having left about 2 months before the hearing. The applicant confirmed Mr Lee had been sponsored by the applicant. He indicated he left because his contract had expired. The Tribunal noted that Mr Lee’s contract, which was provided to the Department by the applicant, did not expire until June 2017.  The representative said that Mr Lee was sponsored under the RSMS program which required Mr Lee to remain employed by the applicant for two years only, and this period had expired. Mr Lee left the applicant’s employment of his own accord and returned to Korea for personal reasons. The applicant might ask Mr Lee to come back. He indicated he was paying Mr Lee a base salary of about $85,700 when he left.

18. The Tribunal asked about the applicant’s employees. The applicant told the Tribunal that he has about 20 employees. He said the nominee works for him, sometimes on a full-time basis, sometimes part-time. The Tribunal noted that the applicant proposes to pay Mr Kim a base salary of $96,500, significantly more than he had been paying Mr Lee and this may suggest the proposed salary has been offered in order to overcome the English language requirements for the nominee. The Tribunal asked why he was offering Mr Kim that base salary. The applicant said that Mr Lee did overtime and could earn more than his base salary. He said Mr Kim has good skills and he is diligent. He acknowledged that he does not have vocational English as he has not been able to achieve scores of 5 in each component of an IELTS test. However he said his salary is significantly higher than it otherwise might be because it is very difficult to find tilers in Darwin. Mr Kim is qualified tiler with years of experience.

19. The Tribunal agreed to allow the applicant time to provide further documentary evidence in relation to the r.2.72 requirements.

    Evidence provided after the hearing

20. The applicant provided to the Tribunal the following documents:

    a.Financial statements and company tax returns for the 2013 and 2014 financial years

    b.PAYG Payment Summaries and superannuation information for employees

    c.Bank statements and payslips demonstrating Mr Lee was paid an annual gross salary of $85,758 in the period July 2014 to December 2014 and $94,380 in the period December 2014 to March 2015.

    d.The business’ bank statements record fortnightly transfers of income to the various employees.

21. This evidence includes information about an employee, Youngsun Kim, a permanent resident who is also employed as a Tiler. The Tribunal sought further evidence about this employee which was provided and is discussed below.

    The nomination must comply with the prescribed process

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

23. The applicant is nominating the occupation of Wall and Floor Tiler ANZSCO 333411, which is an occupation under s.140GB(1)(b): r.2.73(1A)(a). The applicant has identified in the nomination Mr Dae Chan Kim, an applicant for a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b). The nomination was made online using the approved form 1196 (internet) and the prescribed fee has been paid; r.2.73(2), (3), (5) & (9). The applicant has identified the nominee in the nomination: r.2.73(4A) and r.2.72(5). The nomination includes the location, Winnellie, Northern Territory, 0820, at which the occupation will be carried out, and the occupation name corresponding with a 6 digit ANZSCO code: r.2.73(4A).

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

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

25. 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.

26. Information before the Tribunal from the Department’s electronic records indicates that the applicant was approved as a standard business sponsor for a three year period commencing 20 May 2013. That sponsorship remains in force and the Tribunal is satisfied that the applicant, at the time of this decision, is a standard business sponsor.

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

    Identification of the nominee

28. 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.

29. On the basis of information on the nomination application the Tribunal is satisfied that the applicant has identified Mr Dae Chan Kim as the person to undertake the nominated occupation and that Mr Kim is a subclass 457 visa applicant.

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

    Requirements for existing Subclass 457 visa holders

31. 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.

32. 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

33. 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;

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

34. On the basis of information provided in the application, the Tribunal is satisfied that the applicant provided the name of the occupation and hence the corresponding 6 digit ANZSCO code and specified the location for the position at which the nominated occupation is to be carried out.

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

    No adverse information known to Immigration

36. 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).

37. There is no adverse information of the type described above known to the Department about either the applicant or an ‘associated person’.

38. Given the above, the Tribunal finds that the requirements of r.2.72(9) are met.

    Specified occupation

39. 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).

40. The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of Wall and Floor Tiler and corresponding code 333411 appear on the relevant list in the relevant instrument. The instrument does not require the nomination to be supported in writing by a specified organisation.

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

    Terms and conditions of employment

42. 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.

43. The delegate in this case formed the view that this requirement was not met because the terms and conditions of employment for the nominee were more favourable than the terms and conditions of Mr Lee, an Australian permanent resident employee performing equivalent work in the workplace at the same location.

44. 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.

45. On the basis of the employment contract which sets out the terms and conditions of employment, the Tribunal is satisfied the nominee’s annual salary will be $96,500. On the basis of the applicant’s evidence at the hearing, the Tribunal is satisfied Mr Hyunil Lee is no longer employed by the applicant. The applicant however provided to the Tribunal information indicating that there is another Australian permanent resident performing equivalent work at the same location, Mr Youngsun Kim (DOB 10 May 1974). The applicant has provided to the Tribunal evidence of his permanent residence (VEVO Entitlement check indicates his Subclass 119 visa was granted on 10 February 2014) and his four most recent pay advices indicating he is paid an annual salary of $91,520.

46. On the basis of this evidence the Tribunal is satisfied the terms and conditions of employment of the nominee will be no less favourable than those that are provided to an Australian citizen or permanent resident performing equivalent work at the same location.

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

    Base rate of pay

48. 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 is $53,900.  

49. 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.

50. 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).

51. In this case the nominee’s annual earnings will be at least $96,500. As this amount exceeds the TSMIT, which is currently specified as $53,900, the Tribunal is satisfied that the requirements of r.2.72(10)(cc) are met.

    Requisite certification

52. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). The certification relates to the tasks of the position, the nominated occupation and the skills and qualifications of the visa holder, or proposed visa holder.

53. The applicant has made the relevant certifications in the nomination application, and on this basis the Tribunal is satisfied that the requirements of r.2.72(10)(e) are met.

    Position must be genuine

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

55. The applicant has provided various documents demonstrating that it has current contracts to undertake tiling projects in Darwin. The financial documents indicate that the business has significant income from its tiling contracts. The Tribunal considers the nominated occupation, Wall and Floor Tiler, and the duties described in the nomination application to be consistent with the business’ needs and the ANZSCO description of the occupation. Having considered all of the evidence in relation to the business and its contracts the Tribunal is satisfied the position associated with the nominated occupation is genuine.

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

    Employment under contract

57. 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.

58. The applicant has provided a copy of a written employment contract with the nominee which is attached to the Department’s file.

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

    Labour Market Testing

60. 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.

61. 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.

1. 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.

2. The prescribed period within which labour market testing is required in relation to a nominated occupation is twelve (12) months. The application was made on 14 April 2014.

3. At the time of application the applicant provided evidence that the business had undertaken Labour Market Testing on 4 July 2013 and 4 December 2013. The applicant provided evidence that it advertised the position on 4 December 2013. The advertisement appeared in the Sun newspaper, Sun Trader column on that date. The applicant also provided evidence that it advertised the position for a 2 week period in July 2013 with Hojunara Group. It has also provided evidence of paid invoices relating to those advertisements. The applicant has stated that it received no applications from the advertisements.

4. The applicant told the Tribunal at the hearing that it is very difficult to secure suitably skilled workers in Darwin. The company has not retrenched any Australian citizens or permanent residents. The business has had difficulty meeting the demands of its current contracts. The Tribunal accepts this evidence.

5. There is no evidence before the Tribunal that there is a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position.

6. The Tribunal is satisfied that the information provided, evidence of paid advertisements placed in the 12 months before the application was made, confirms there have been recruitment attempts made by the business. It is satisfied the nomination was accompanied by evidence of labour market testing.

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

   Work agreements

8. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.

   Conclusion

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

   DECISION

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

    Denise Connolly
    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.