1417213 (Migration)

[2016] AATA 3992

1417213 (Migration) [2016] AATA 3992 (16 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SCAFEAST INTERNATIONAL PTY LTD

CASE NUMBER:  1417213

DIBP REFERENCE(S):  BCC2014/1227953

MEMBER:Adrian Ho

DATE:16 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 16 June 2016 at 4:22pm

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 29 September 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 16 May 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) on the basis that the position was not genuine.

4. The applicant appeared before the Tribunal on 11 May 2016 to give evidence and present arguments.

5. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Position must be genuine

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

10. At hearing the parties were informed that the nomination application was refused by the delegate as not meeting this requirement (despite the delegate’s use of r.2.72(10)(aa)) and this was the major issue that should be addressed by the parties at hearing and that would be decided by the tribunal.

11. The tribunal observed to the parties that one of the matters which the applicant has certified, and is required to certify, is that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in ANZSCO[1] or specified in an instrument.

    [1] Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1

12. It was suggested that the “position” refers to the job and its tasks in the nominating business; while the “nominated occupation” refers to the occupation as described through its indicated tasks in ANZSCO.

13. It was suggested that a deliberation of this requirement requires a consideration of the need for the position in the business, and a comparison of the tasks and nature of the position and the tasks and nature of the nominated occupation as indicated by ANZSCO.

14. It was pointed out that in relation to the analogously worded visa criterion in cl.457.223(4)(d)(ii) the Court had recently indicated[2] that the following questions may be relevant:

    a.What is the occupation that has been nominated in relation to the applicant?

    b.How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?

    c.What are the tasks the applicant claims he or she has been employed or will be employed to perform?

    d.Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO?

    e.If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks he or she will be engaged to perform?

    [2] Khan v MIBP [2016] FCCA 333

15. The ANZSCO entry[3] for the nominated occupation is as follows:

    [3] GROUP 1311 ADVERTISING AND SALES MANAGERS

    
    ADVERTISING AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    oformulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers

    odirecting the development of initiatives for new products, marketing and advertising campaigns

    oorganising and controlling sales activities by setting product mix, geographical sales areas and customer service standards

    odirecting merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors

    odirecting sales methods and arrangements by setting prices and credit arrangements

    
    Occupations:

    131111 Advertising and Public Relations Manager 
    131112 Sales and Marketing Manager

    
    131111 ADVERTISING AND PUBLIC RELATIONS MANAGER

    
    Plans, organises, directs, controls and coordinates the advertising and public relations activities within an organisation.

    Skill Level: 1

    Specialisations:

    Community Relations Manager 
    Corporate Relations Manager 
    Public Affairs Manager 
    Relationship Manager

    
    131112 SALES AND MARKETING MANAGER

    
    Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.

    ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.

    Skill Level: 1

    Specialisations:

    Business Development Manager 
    Market Research Manager

    The business

16. At hearing the director gave the follow evidence about the business:

    a.The submission beginning at folio 269 was written by an external service provider: tasteforbusiness.com.au;

    b.The tasks indicated from folio 265 are the current tasks of the position;

    c.She started the business in 2012 and turnover in the first years was around $300000, $500000, $700000 in 2015 and in this financial year sales have already topped $2 million;

    d.A first staff member was hired in 2013, Michael, who helped sell products and maintain clients;

    e.Michael was replaced by Jack Si in 2014, and a second sales assistant was hired in 2015;

    f.She did not readily know the company’s website address but said it sold scaffolding products online;

    g.She said the nominated person was in China and helped her set up the website;

    h.The nominated person is in fact an employee of her company in China, which manufacturers scaffolding;

    i.The nominated person has contact with clients in Australia, helping her to develop the market here.

17. A discussion took place at hearing where the tribunal explored with the applicant’s director the position and its tasks, and the tasks as indicated by ANZSCO for SMM.

    The position

18. After a break in the hearing. the director was taken through each of the tasks in the company’s written submission start at folio 265 and asked to expand of what was envisaged for each task.  The director made the following relevant points:

    a.The position description (appearing at folio 115) and the position description in the contract of employment (appearing folio 73) were written by her migration agent who asked her what tasks the position took in;

    b.She stated the tribunal should rely on the latest manifestation of the written tasks (at folio 265);

    c.She was taken through those tasks and provided with an opportunity expand in her oral evidence;

    d.Planning and organising sales and marketing activities for the company: she stated she wanted the nominee to come and train staff; she was very busy and went to work at 7 am; she manages finances and deals with Chinese clients; she checks how much money clients owe and issues invoices; she manages the stock in the warehouse and talks to the Chinese supplier about ordering more stock;

    e.the nominee will help with:

    i.maintaining important clients online and communicating with them and ‘improve where needed’;

    ii.product specifications and technology for the new warehouse and operation in Western Australia;

    iii.overseeing modifications and improvements in products such as length or thickness;

    iv.clients will tell him that an item is too long or too short and he will arrange for the factory in China to make the necessary adjustments, and he does this already and it is better for him to be here to help her in that;

    v.expanding the client base and maintain relationships with clients by speaking English, because she does not, by communicating with clients through the internet which the sale assistant could not do because they don’t know as much about the product and the nominee had 10 years of experience in sales; he will help ‘stabilise the client base’;

    f.Setting up sales teams in Melbourne and Perth, training new sales staff: the nominee will train staff on ‘product quality’, specifications and modifications; and will train staff on implementing the ‘sales plan’; when asked what the sales plan was, she said it was to develop a team to promote products in different cities; the nominee would ‘stabilise’ things in Melbourne before focusing on the Perth operation;

    g.Planning and implementing sales strategies in different areas and for different customer groups: the director said this meant ‘planning strategies’ and was encouraged to explain what is meant by it; she said the nominee could help get new clients and markets; she agreed the acquisition of new clients was part of the role of a technical sales representative which was the occupation previously identified for a previous nomination for the nominee;

    h.Setting up pricing strategies and collecting methods for different customer groups: the director said the products are brought from China and they need to set the price; when asked who has set the price so far, she did not give a clear answer; when pressed she said her husband in China and herself would set the price; when asked what a price strategy was she said they would implement their pricing strategy; when pressed as to what the strategy was she said the prices were those of the products and involved receiving and making payments;

    i.Developing and maintaining customer relationships and managing key accounts: in response to this item the director said the nominee would manage the display room; organise displays of scaffolding; and promote the products at ‘shows’;

    j.Developing distributor channels to expand sales: the director said this was market analysis; she said distributor channels were like big and small clients;

    k.Working with the director to compile and implement the sales and marketing plan: she said this was making decisions with the director and to discuss plans and how to promote and sell products in different cities;

    l.Analysing the market and provide reports to the director on sale performance, market requirements, demand and changes: she said the directors will discuss plans and strategies together;

    m.Promoting new products to the market: she said this was to promote the products of the company and develop channels; when asked what channels were she said they were clients, technology and promotion;

    n.Managing showrooms and participating in exhibitions: she said this was as stated in relation to another task earlier.

19. It was put to the director that it appeared she had only a vague understanding of the tasks of the position as submitted in written material, and the tribunal had doubts that the position took in each or all of the tasks as written.

20. It was suggested that the nominee would be required to interact with clients regularly in a role which was more that of a sales representative or sales assistant.

21. She was invited to comment.

22. She said she had no concerns as to the position being a sales and marketing occupation.

    The ANZSCO-indicated tasks

23. Each of the ANZSCO-indicated tasks of an SMM were put to the director and the director was invited to give evidence as to whether and how the position took in this task:

    Formulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers

    i.The director had no comment.

    Directing the development of initiatives for new products, marketing and advertising campaigns

    ii.The director indicated this task was relevant to the position and mentioned sales and training staff in technology and skills;

    Organising and controlling sales activities by setting product mix, geographical sales areas and customer service standards

    iii.The director indicated this task was relevant to the position and when asked to expand she said ‘sales’ and mentioned clients in Perth, Brisbane and Adelaide;

    Directing merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors

    iv.The director indicated this task was relevant to the position and mentioned that the business had small clients purchasing products, she mentioned developing new products such as temporary fencing and liaising with clients online;

    Directing sales methods and arrangements by setting prices and credit arrangements

    v.The director indicated this task was relevant to the position but did not wish to expand.

24. It was suggested that the director appeared not able to conceive of the position in terms of the ANZSCO-indicated tasks and how the tasks indicated by ANZSCO manifest in the position.

25. It was suggested that all the observations put to her at hearing might lead to a conclusion that:

    a.the position did not take in the tasks indicated in the company’s own documents;

    b.the position may not take in any of the ANZSCO-indicated tasks of the nominated occupation;

    c.and for each of these reasons, the position associated with the nominated occupation may not be genuine.

26. The director was invited to comment.

27. She said it was a genuine position for Mr Guo who has 10 years’ experience in scaffolding and could help her to expand sales.  She said by herself, as a woman, it was difficult and exhausting. 

28. It was put to the director generally that during her oral evidence she appeared to have limited working knowing of the business, of the written material submitted in relation to the position and its tasks, and of the business’ financial information which had also been submitted in writing.

29. She gave evidence that she had obtained permanent residence on a business visa in relation to the business, and it was suggested to her that it was a criterion of that visa that she maintain direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

30. Based on her less than satisfactory knowledge of the business, the tribunal has some doubt that the director would satisfy the ‘main business’ requirements of r.1.11 in relation to the business.

31. At the conclusion of the hearing, it was indicated to the director that much of her evidence as to the written tasks of the position, and of the tasks indicated in ANZSCO, appeared to be vague.  When she was invited to expand on each tasks by the tribunal, in her evidence she often simply repeated the words comprising the task that had been supplied by the tribunal.  She was not able to expand on most tasks in any convincing detail, nor to give the tribunal an appreciation of how the position would fit within the business.

32. In submissions, the representative suggested the director was nervous at hearing.  The tribunal accepts this was so, but as suggested, the tribunal is not satisfied that the director’s anxiety during the hearing accounts for the lack of apparent familiarity with the business and the tasks of the position.

33. The tribunal acknowledges that the business requires a sales and marketing function.  However, the tribunal is not satisfied that the position takes in any significant number of the tasks of an SMM indicated in ANZSCO.  That is to say, the tribunal is not satisfied that the position is that of an SMM, or equivalent or substantially equivalent thereto, as opposed to a lower level occupation such as a sales or marketing representative or assistant.

34. The tribunal considers that the director of the company should be in a position to give a detailed and convincing account of the business and its structure and of what is expected of the incumbent of the position and how the position will integrate into the business and thereby add value to the business.  The tribunal considers that the director’s written and oral evidence do not provide a nuanced appreciation of the tasks of the position, not whether it takes in any of the ANZSCO-indicated tasks of an SMM.

35. For these reasons, the tribunal is not satisfied that the position is equivalent to or substantially equivalent to the occupation of SMM in ANZSCO, and in this sense, the tribunal finds that the position associated with the nominated occupation is not genuine.

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

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

    DECISION

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

    Adrian Ho
    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.

    (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.