1421167 (Migration)

[2015] AATA 3101

1421167 (Migration) [2015] AATA 3101 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GLENBERRY NOMINEES PTY LTD ATF FLOTTMAN PROPERTY TRUST AND ANTHEMIS PTY LTD ATF THE TREVOR PROPERTY TRUST NO 2 AND ANTHEMIS PTY LTD ATF THE TREVOR PROPERTY TRUST NO 4

CASE NUMBER:  1421167

DIBP REFERENCE(S):  BCC2014/2836208

MEMBER:Marten Kennedy

DATE:10 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 10 July 2015 at 1:18pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 December 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). The application for review was lodged with the Migration Review Tribunal. From 1 July 2015, the Migration Review Tribunal was abolished. Under the transitional provisions in the Tribunals Amalgamation Act 2015, this application for review is taken to be an application for review to the Administrative Appeals Tribunal (AAT). This means that the tribunal’s decision and reasons are formally a decision and reasons of the AAT.

2. The applicant is a partnership operating the ‘Old Shanghai’ Food Hall in Perth.  The applicant applied for approval of the nominated position on 27 October 2014.

3. 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.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa).

5. 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 by legislative instrument (relevantly IMMI 14/048). The applicant seeks approval for the position of Cook: ANZSCO 351411.  This occupation is an occupation corresponding to an occupation specified in IMMI 14/048.

6. It is to be noted however that ANZSCO differentiates between ‘Cooks’ and Cooks in fast food or quick service establishments.   The occupation of fast food cook is not an occupation specified by IMMI 14/048, and therefore is not an occupation amenable for approval under the 457 scheme at the time of this decision.  This differentiation is acknowledged in IMMI 14/048 by an asterisk pointing out that the occupation excludes positions in fast food outlets.

7. The delegate decided that the business was a fast food outlet or a fast casual dining.  As the delegate was not satisfied that the establishment was not a fast food operation, the delegate concluded that the nominated occupation did not correspond to the occupation specified in the instrument.

   Does the occupation correspond with an occupation specified in the legislative instrument?

8. In Nguyen and Vu Publishers Pty Ltdv Minister for Immigration and Anor [2013] FCCA 1697, the Court held that the task for the Tribunal is to determine whether the nominated occupation corresponds to an occupation in the applicable instrument, and that such a judgment must inevitably compare the real duties of the nominated position with that of a specified occupation.

9. The first issue for me to decide therefor is whether the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in IMMI 14/048, in the sense of a comparison between the real duties of the nominated position with that of a Cook as described in ANZSCO.

10. I have had regard to the decision and reasons for decision of the Migration Review Tribunal in matter 1312107.  I am conscious that I am not bound to reach the same findings as a previously constituted Tribunal.  In any event, that review was concerned with approval of a nomination under the Regional Sponsored Migration Scheme for the occupation of Café and Restaurant Manager. 

11. In that matter, Member Caravella summarised evidence from Mr Flottman as to the nature of the establishment, including the nature of its food and service.  For the purpose of this review, I have had regard to the evidence of Mr Flottman set out in the decision record for matter 1312107 at paragraphs 7 and 9. Mr Flottman explained that the business is a step above a food hall and a step below a restaurant.  The business can seat 300 people and is akin to a hawker’s market.  Each kitchen within the establishment is a fully functional commercial kitchen.

12. In addition, at the hearing before me, Mr Flottman explained that the particular position to which the nominated position related was a position of cook assigned to a particular outlet within the establishment.  The particular position was allocated to the ‘Shanghai Barbecue’ outlet. Mr Flottman explained that with all subclass 457 sponsored cooks (7 have already been approved by the Department), they retain the capacity to move between different food outlets if required, including for the training of other staff. 

13. I take into account the fact that the Department has approved multiple nominations for this employer for the same occupation under the subclass 457 scheme. I am conscious that the Department’s approval of other nominations does not bind me to reach the same finding.

14. Having regard to the nature of the premises, the nature of the food served and the standard of service, I am satisfied that the establishment is not a fast food outlet, and is more akin to a café or restaurant.  I accept that staff undertaking positions as Cooks in the various outlets operating within the establishment, and between them, are Cooks in the sense described in ANZSCO 351411 and not fast food cooks.

15. In relation to the particular position, I am satisfied that the nominated occupation corresponds to the occupation specified by the Minister in IMMI 14/048, in the sense that the real duties of the nominated position correspond with that of a specified occupation.  I find the requirement of r.2.27(10)(aa) is met.

16. I turn to consider the remaining requirements for approval of the nomination.

    Is the position genuine?

17. Having regard to the same evidence and for the same reasons as set out above in relation to whether the position corresponds with an occupation specified in the legislative instrument I am satisfied that the position associated with the nominated occupation is genuine, and the requirements of r.2.72(10)(f) are also met.

18. In this regard I record for completeness that I am satisfied that the size and scope of the establishment justifies a genuine need for multiple positions for Cooks.

    The nomination must comply with the prescribed process

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

20. I am satisfied, based on inspection of the Departmental file that:

    ·The applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a);

    ·The applicant identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b);

    ·The nomination was made using the approved form and fee: r.2.73(2), (3), (5) & (9);

    ·The applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5); and

    ·The nomination includes the location/s at which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO: r.2.73(4)/(4A).

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

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

22. 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. I am satisfied based on my inspection of Departmental systems that the applicant is a standard business sponsor. For these reasons the requirements of r.2.72(4) are met.

    Identification of the nominee

23. 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. I am satisfied the applicant has done so based on my inspection of the Department’s file. For this reason the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

24. 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. 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, and in that sense are met.

    Information about the nominated occupation

25. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

    ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

    ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 14/048; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

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

26. All these matters are specified and for these reasons the requirements of r.2.72(8A) are met. In this regard, the nomination form identifies the name of the occupation but does not cite the 6 digit code. In the course of the hearing and in other written material the applicant’s representative identified the 6 digit code relating to ‘Cook’ and I am satisfied it was thus ‘provided’.

    No adverse information known to Immigration

27. 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).

28. Having accessed the Departmental systems available to me, and in the absence of any adverse information being brought to the attention of the Tribunal by the Department I am satisfied there is no adverse information known to Immigration about the applicant or a person associated with the applicant. For these reasons the requirements of r.2.72(9) are met.

    Terms and conditions of employment

29. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.

30. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

31. In this case, the applicant relies on a comparison with an existing employee, Mr Kainian Wang.  I am told, and accept, that Mr Wang is an Australian permanent resident.  Following the hearing, the applicant has provided me with payslips demonstrating that Mr Wang’s year to date salary as at 31 May 2015 was $50 999.93.  Projecting this figure forward, I find that Mr Wang’s annual salary is in the order of $54 000.

32. I have also been provided with an updated contract of employment dated  16 June 2015 identifying annual salary for the nominated position of $54 000 per annum plus 9.5% superannuation.

33. I find that that the terms and conditions of employment of the nominee will be no less favourable than those that are provided to an Australian permanent resident performing equivalent work at the same location, and the requirements of r.2.72(10)(c) are met.

    Base rate of pay

34. 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 a legislative instrument. At the date of this decision, the relevant legislative instrument had reverted to IMMI 13/028, as a consequence of the disallowance of legislative instrument IMMI 15/058 by the Senate on 15 June 2015. In any event, both IMMI 13/028 and IMMI 15/058 provide for a TSMIT of $53 900. Applying IMMI 13/028, I find that the base rate of pay for the Australian equivalent is greater than TSMIT and the requirements of r.2.72(10)(cc) are met.

    Requisite certification

35. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). I am satisfied that the requisite certification has been made in the nomination application. And the requirements of r.2.72(10)(e) are met.

    Employment under contract

36. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument. I have examined a written contract dated 16 June 2015 and consider that through providing it to the Tribunal it has been provided to the Minister. The requirements of r.2.72(10)(h) are met.

    Labour Market Testing

37. 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.

38. 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 12 months 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.

39. 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.

40. There is no relevant exemption in place.  The applicant has stated ionthe nomnination form that there have been no relevant retrenchments in the four months prior to the nomination application.

41. The applicant has produced evidence accompanying the nomination demonstrating attempted, albeit unsuccessful recruitment for Asian Chef and Cook during the specified period.  I accept in light of this evidence that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder is not readily available to fill the nominated position (s.140GBA(3)(d)).

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

    Work agreements

43. 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 party to a work agreement and these provisions are inapplicable. In that sense, I am satisfied the requirements of r.2.72(11) and (12) are met.

    Conclusion

44. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved, and I approve the nomination.

    DECISION

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

    Marten Kennedy
    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.