1507516 (Migration)

[2016] AATA 4218

1507516 (Migration) [2016] AATA 4218 (5 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Furniture Creation Pty Ltd ATF Furniture Creation Trust

CASE NUMBER:  1507516

DIBP REFERENCE(S):  BCC2015/254487

MEMBERS:Miriam Holmes (Presiding)

Louie Hawas

DATE:5 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 05 August 2016 at 1:05pm

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 20 May 2015 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 23 January 2015. 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. Those criteria are extracted in the attachment to this decision. For nomination 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)(aa) of the Regulations because the nominated role of customer services manager did not correspond with an occupation specified by the Minister in a written legislative instrument. The relevant instrument at the time of the delegate’s decision was IMMI114/048. That instrument was repealed on 1 July 2015. IMMI16/059 is the relevant instrument now in force.

4. One of the applicant’s directors Vienn Lee appeared before the Tribunal on 9 June 2016 to give evidence and present arguments. Ms Lee is the applicant’s nominee and is the applicant in related review No. 1510294. The other director of the applicant Micky Wong did not attend the hearing. The Tribunal also heard oral evidence from Julian Matthews, the applicant’s website developer.

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

6. For the following reasons, the Tribunal has decided to affirm the decision under review and refuse the nomination. The Tribunal was not satisfied that the requirements of r.2.72(10)(aa), being the clause the delegate considered, have been met. Further, the Tribunal was not satisfied that the requirements of r. 2.72(10)(f) have been met, which clause requires the position associated with the nominated occupation to be genuine.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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).

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

1. 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. The applicant is not a party to a work agreement within the meaning of that term in s. 5 of the Act and r. 2.76(2) of the Regulations. That issue does not arise for further consideration.

2. During the hearing, Ms Lee said that the applicant was not a standard business sponsor. That evidence was confirmed by the applicant’s representative. Accordingly, the requirements of r.2.72(4) have not been satisfied.

3. The applicant’s representative said that the applicant had applied for approval as a standard business sponsor on 1 June 2016 but that application was yet to be determined. The applicant did not apply for an adjournment of the hearing pending a decision on the approval application. However, given the Tribunal’s findings that the applicant had not satisfied the requirements of clauses 2.72(10)(aa) and 2.72(10)(f), there would have been little utility in awaiting the outcome of the approval application. The applicant would have failed to satisfy the requirements of those clauses and would have failed in this review in any event.

Specified occupation

1. Clause 2.72(10)(aa) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in legislative instrument IMMI 16/059 being the instrument in force at the time of this decision. 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). This is not relevant here.

2. Here the applicant nominated Ms Lee’s occupation as a customer service manager but has not specified a code. That occupation is specified in IMMI16/059 with the code ANZSCO code 149212 (it was specified in IMMI114/048 under the same code).

3. But corresponding job titles (and codes) on their own is not sufficient to satisfy the requirements of r. 2.72(10)(aa). In Nguyen & Vi Publishers Pty Ltd v Minister for Immigration & Anor and Nguyen v Minister for Immigration & Anor[1], the Federal Circuit Court stated that in considering whether an applicant had satisfied the requirements of the clause, the Tribunal (or decision maker) had to determine whether the job nominated by the applicant corresponded to the job described in the ANZSCO description. That required the Tribunal to examine the proposed duties of the nominated employee and determine whether those duties corresponded with the ANZSCO description of the job. In this matter, that requires the Tribunal to assess whether the job (and actual duties) Ms Lee was to perform was that of a customer service manager as it is described in ANZSCO.

   [1] [2013] FCCA 1697 at [37] and [38] per Judge Burchardt.

4. The Tribunal finds that on the evidence before it, the duties Ms Lee performed, and was to perform, in her role with the applicant was not that of a customer service manager. In the circumstances of this matter, the analysis supporting that finding is the discussed below as part of the analysis supporting the finding that the position associated with the nominated occupation of customer service manager is not genuine. The analysis is set out under the relevant heading below. In the end, the Tribunal is not satisfied that the requirements of r.2.72(10)(aa) have been met.

Position must be genuine

The relevant test

1. Regulation 2.72(10)(f) requires the position associated with the nominated occupation to be genuine.

2. In First Cargo Pty Ltd v MIBP[2] the Federal Circuit Court examined the operation of clause 2.72(10)(f) and stated at [30]:

   ‘With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation.’

   [2] [2015] FCCA 2091 at [30] per Judge Smith.

3. In Nguyen the Court stated that in determining whether r.2.72(10)(aa) was satisfied, the Tribunal had to decide whether the job nominated by the applicant under the relevant name and code corresponded to the job described in ANZSCO under the same name and code. In First Cargo the Court described a similar approach to determining whether the requirements of clause 2.72(10)(f) had been met. The approach described in First Cargo requires the Tribunal to be satisfied that the position exists. That entails a qualitative analysis of the position to determine whether it is really what it purports to be, and not simply whether the duties relevant to the position include the majority of those referred to in ANZSCO in any particular case. The approach to determining whether the requirements of each clause have been met, may involve similar factual inquiries and findings.

   The delegate’s decision and summary of the Tribunal’s ultimate decision

4. In the decision record, the delegate found that Ms Lee’s duties described in the material submitted with the application entailed ensuring that customers received prompt service and quality goods, and responding to customers’ enquiries and complaints about the applicant’s goods and services. Those duties did not correspond with the description of a customer service manager in ANZSCO. The delegate described a customer service manager was a highly specialised role, which entailed planning, reviewing and developing policies, programs and procedures to improve customer relations and after sales service, motivating sales staff, assisting with recruitment, and resolving customer service issues. A customer service manager would not ordinarily descend into the operational tasks described in the application material. The delegate found that Ms Lee’s more operational role was more accurately described as a retail supervisor (ANZSCO 621511), which occupation was not specified in IMMI114/048. That occupation is not specified in IMMI16/059 either.   

5. For the reasons set out below, the Tribunal is not satisfied that the position associated with Ms Lee’s nominated occupation is genuine.

   ANZSCO

6. In ANZSCO the occupation of customer service manager (149212) is set out in the unit group 1492 call or contact centre and customer service manager.

7. The ANZCSO code describes the role for the occupations in that unit group as follows:

   ‘CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.’

8. The following tasks are listed for that unit group:

   ‘Tasks Include:

   •developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided

   •ensuring operational efficiency within a call centre

   •providing direction and feedback to team members and assisting with recruitment

   •managing, motivating and developing staff providing customer services

   •planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

   •liaising with other organisational units, service agents and customers to identify and respond to customer expectations

   •may work in a call centre

   Occupations:
   149211 Call or Contact Centre Manager
   149212 Customer Service Manager’

9. Further, ANZSCO lists under the customer service manager occupation the following tasks:

   ‘Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.’

   The applicant’s operations and Ms Lee’s relationship to the applicant and its business

10. The applicant applied for the nomination and for this review as the trustee for the Furniture Creation Trust. The trust deed and a description of the nature of the trust (unit trust, trading trust, discretionary etc.) was not given to the Tribunal. Ms Lee did not know whether she was a beneficiary of the trust or who the beneficiaries were. She said that when she was first establishing the Furniture Creations business she took accounting advice on the appropriate business structure. On advice she chose a trust with a company trustee and asked her accountant to establish that structure.

11. ASIC’s records reveal that the applicant was incorporated on 15 May 2013. Ms Lee confirmed she was the sole director and secretary from incorporation until 29 July 2014 when Mr Wong was appointed as her co-director. Ms Lee remains as secretary. The business trades (or will trade) under the name ‘Habtitude Furniture’. A business name search reveals the applicant (as the trustee for the Furniture Creation Trust) as the registered holder of the name ‘Habtitude Furniture’.

12. Ms Lee said that the Furniture Creations business concept was to source locally manufactured furniture and sell it to the public at affordable prices. Customers could configure the furniture that they preferred and Furniture Creations would then have the furniture custom made by local manufacturers and supplied. Furniture Creations had a dual retail strategy. It would operate through a website, which allowed customers to configure and order furniture, and temporary ‘pop up stores’ in major shopping centres such as Westfield Doncaster and Fountain Gate.

13. Ms Lee said that the Furniture Creations business was yet to trade or sell any furniture. She said that the business was almost ready to launch and she was awaiting the outcome of this review before launching the business. If the applicant was not successful in this review and she was required to leave Australia, the business would not trade at all. The future of the business depended entirely on Ms Lee’s involvement.

14. Since establishing the applicant company in 2013, Ms Lee has been the only person functioning in its business (or proposed business) in any way. Mr Wong has allowed her free reign to establish the business as she considered appropriate and she has managed every aspect of the applicant’s business affairs to date. Ms Lee said she had done the following since 2013 in establishing the business and getting it ready to launch:

    (a)Invested over $100,000 of her own money into establishing the business and developing it to launch. She has been the only investor or source of funds to date;

    (b)Retained and instructed accountants to prepare financial statements and BAS statements;

    (c)Retained and instructed other consultants and contractors such as Mr Matthews who has developed the business website. She has had input into the design and functionality of the website. Mr Matthews supported Ms Lee’s evidence on these matters. Ms Lee has also retained and instructed a business consultant;

    (d)Built the name and the brand of the business;

    (e)Located and then liaised with suppliers of furniture and material such as Dunlop, Sleepmaker and other less known local manufacturers about the potential design and functionality of furniture. She has had input into the potential design of the furniture. Concept drawings and photographs of furniture were tendered to the Tribunal in the review; and

    (f)Negotiated with potential landlords of the ‘pop stores’, and service providers including a business who will provide after sales care to the applicant.

15. ASIC records show that Ms Lee is the applicant’s sole shareholder. Ms Lee did not seem to know that initially. When the Tribunal put to Ms Lee the content of an ASIC search on the applicant, which recorded her as the sole shareholder, she accepted that was the case. The Tribunal set out the information in the ASIC search to Ms Lee under s. 359AA of the Act. The Tribunal explained to Ms Lee that the information from ASIC recording her as the applicant’s only shareholder was relevant because her standing as a shareholder could support a finding that the applicant did not nominate Ms Lee as a genuine customer services manager but that her role was much broader. The information could support a finding that Ms Lee was an investor and stake-holder in the applicant’s business and not a genuinely employed customer service manager. The Tribunal explained that the information would be the reason, or part of the reason, for affirming the delegate’s decision. The Tribunal asked Ms Lee to comment on the information and adjourned the hearing temporarily so that Ms Lee could seek advice from the applicant’s representative.

16. After seeking advice, Ms Lee repeated that she took accounting advice when establishing the Furniture Creation Business. The accountant (who she retained) explained the various business structures that she could adopt and he recommended a trust structure with a company trustee. She chose that structure because it had certain advantages. The accountant then went ahead and established the trust and the applicant as trustee. She did not know that the accountant had recorded her as the applicant’s sole shareholder.

17. On questioning from the Tribunal, Ms Lee said that she did not know how any business profits would be treated and whether she would share in those profits. She said she had little knowledge of the accounting side of things and was yet to discuss those matters with Mr Wong. She said that, as the applicant’s sole shareholder, she did not know whether she would participate in any distribution of profits.

18. Ms Lee did not know whether she was currently employed by the applicant. She said that once the business was operating, it would employ a sales person, a marketing person, and she would be the customer services manager. Ms Lee accepted that her role with the applicant to date was broader than that of a customer services manager but once the business was operational, she would step back from her broad role and concentrate on her customer service manager duties. She described those duties as maintaining customer relations, dealing with customer complaints about say defective goods, training staff, and attending to after sales care. Ms Lee emphasised that her role would ultimately be to ensure that customers were satisfied.  

19. Ms Lee said that the description of her position tendered to the Tribunal in the review was drawn by the company business consultant. Ms Lee said that the position description would need to be changed once the business was operating. She said that the position summary should refer to ‘implementing policies and rules’. The Tribunal notes that the description described some duties that corresponded with the ANZSCO description of a customer service manager but many other described duties were operational matters that one would expect to be performed by somebody with a more general managerial role as opposed to a specialised customer service manager. Some of those include driving sales and revenue, preparing budgets and monitoring costs, maintaining inventories, and ensuring compliance with legal requirements.

20. Ms Lee described Mr Wong’s role in the business as the person with the ‘final say’. He is an experienced businessman who Ms Lee would consult about business matters and to assist her with strategic direction. Mr Wong is a sales manager with Mirvac and lives and works in Sydney. After the hearing, the applicant’s representative tendered to the Tribunal a letter from Mr Wong dated 15 June 2016 stating that given the uncertainty of Mr Lee’s future in Australia, he had stepped away from the applicant’s business and left it to Ms Lee to build. Mr Wong stated that Ms Lee was responsible for ‘Habtitude’s success’. Mr Wong stated that if the review is successful, he will provide full administrative support and actively monitor operations.

21. The income statements and BAS statements tendered to the Tribunal in the review reveal that the applicant has only incurred losses to date. The balance sheet for the year ended 30 June 2015 records the applicant as having $11,030 in cash as its only asset and total liabilities of $20,404. The financial statements do not explain how Ms Lee’s contribution of over $100,000 to the applicant is treated, and whether it is a capital contribution or a loan to be repaid. 

22. The Tribunal asked Ms Lee to explain how, given that the applicant has no income yet and an excess of liabilities over assets, it will pay her salary of $60,000 as referred to in the conditions of employment document dated 19 January 2015 tendered to the Tribunal (Ms Lee said in evidence that her salary would be $55,000). She said that she would provide the money for her salary. When asked whether she proposed to pay herself, she said that Mr Wong would provide financial support to the applicant. Mr Wong has not provided any to date, and he did not say that he was prepared to provide any in his letter dated 15 June 2016 tendered to the Tribunal after the hearing.

    The salary for the position

1. As stated above, the employment terms and conditions tendered to the Tribunal in the review states that Ms Lee’s salary will be $60,000 per annum. Ms Lee said that her salary will be $55,000. During the hearing, the Tribunal told Ms Lee that according to Job Outlook the average salary for a customer service manager is about $66,000 and that her proposed salary was below that amount. Ms Lee said that her salary was set lower because the business was a start-up. Her salary would be reviewed once the business was operating.

2. After the appeal, the applicant’s representative tendered to the Tribunal extracts from a range of job websites, which indicated that the appropriate salary for a customer service manager ranged between about $45,000 and $80,000 and that the median base salary was $55,000.

3. The Tribunal considers that on the evidence available to it, a salary of $55,000 or $60,000 is slightly lower than that commensurate with the salaries of other customer service managers. However, given the other findings set out below, the Tribunal has not given much weight to Ms Lee’s proposed salary in its analysis.

   Findings

4. The Tribunal finds that the role Ms Lee has been performing with the applicant to date is not that of a customer service manager. Given the ANZSCO description of the necessary duties of that occupation as set out in paragraphs 21 to 23 above, it is difficult to imagine how somebody in Ms Lee’s position can fit within the nominated occupation as described in ANZSCO where the business does not trade, does not have any customers, and does not have any staff (or more accurately personnel) other than the person in question (Ms Lee). At its highest, Ms Lee has been establishing the business in which she hopes to work as a customer service manager but that is yet to occur. Ms Lee admitted as much in her evidence but explained that once the business was trading, the applicant would hire other operational staff and she would focus on her job of customer service manager. We return to that below.

5. Further, on the evidence, Ms Lee is not presently an employee of the applicant at all. She is a director of the applicant and its only shareholder. She has been the sole source of funding for the applicant and has managed every aspect of establishing the business. She has not been receiving any remuneration for her efforts to date. She can be accurately described as the principal of the applicant’s business, a stakeholder in the applicant and its business, the applicant’s managing director, and perhaps its financier but hardly an employee or customer service manager. Again, duties associated with being a stakeholder or principal of a business do not fit within the ANZSCO description of a customer service manager.

6. Even if the applicant is able to launch its business and commence trade, the Tribunal is not satisfied that the applicant will have a genuine need for a dedicated customer service manager in the short term, or that Ms Lee will perform that role as ANZSCO defines it. Several matters support those conclusions. 

7. Ms Lee relies on the applicant hiring other employees to perform operational duties so that she can focus on customer service. However, on the evidence, the applicant will not be in a position in the short term to pay wages to any other employees let alone Ms Lee. The applicant has $11,030 in cash and an excess of liabilities over assets. The applicant has not tendered any evidence of established loan facilities upon which it could draw to cover its operating costs. The applicant has not provided evidence of an ability to establish such loan facilities such as assets against which the facilities could be secured. Ms Lee stated that she would provide funds to the business and then said that Mr Wong would give financial support. Ms Lee has not tendered any evidence to establish that she has the means to fund operating costs in the short term, to cover probable losses in the short term, and to pay her salary let alone that of other employees. Further, the applicant has not tendered any evidence to establish that Mr Wong has the necessary financial means or indeed the will to cover the applicant’s costs or support the applicant financially. Despite Ms Lee’s evidence that Mr Wong would give financial support, he did not state as much in his letter dated 15 June 2016 tendered to the Tribunal after the hearing. Mr Wong referred only to administrative support and monitoring operations.

8. The Tribunal finds that, on the evidence before it, if the applicant is able to launch its business, Ms Lee will likely be the only person working in the business day-to-day at least in the short term. Her role will likely be that of the principal of the business or that of a general manager dealing with all aspects of the business and not just customer service. Although some of her duties might include some of those described in the ANZSCO occupation of a customer service manager, she will not genuinely work in that role as ANZSCO describes it. It is difficult to imagine how the business of the applicant can be operated by somebody only performing the duties of a customer service manager as ANZSCO defines that role. The Tribunal finds that the applicant does not have a genuine need for a customer service manager.

9. At the hearing, the applicant’s agent submitted that the Tribunal should look beyond the ANZSCO description in order to determine the proper description of a customer service manager. The representative submitted that the ANZSCO description was unnecessarily limited. After the hearing, the applicant’s agent tendered to the Tribunal extracts from several job websites that described the duties of a customer service manager as entailing many operational duties such as managing budgets, meeting financial objectives, and providing strategic guidance.

10. Even if the Tribunal accepts that it can go beyond the ANZSCO description of a customer service manager, Ms Lee’s role with the applicant to date, and her likely role moving forward, is far broader than the roles described in the material that the representative has tendered. As a managing principal, Ms Lee cannot properly be described as a customer service manager in any relevant sense.

11. Clause 2.72 contains a series of cumulative requirements that must all be satisfied. Clauses 2.72(10)(aa) and 2.72(10)(f) are two of those cumulative requirements. As explained above, the tests for satisfying the requirements of each of those clauses involve similar factual inquiries and findings. Clause 2.72(10)(aa) requires the nominated occupation and its code to correspond with those specified in a legislative instrument. IMMI16/059 specifies the relevant occupation names and codes by reference to their names and codes in ANZSCO. To go beyond the ANZSCO descriptions of the relevant occupations would seem to undermine the scheme contemplated in r. 2.72.

12. For the reasons set out above, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine, or that the requirements of r. 2.72(10)(f) (and r. 2.72(10)(aa)) have been satisfied.

13. The Tribunal finds that the applicant has not met the applicable criteria for the nomination to be approved. Accordingly, the Tribunal affirms the decision under review.

DECISION

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

Miriam Holmes
Senior Member

Louie Hawas
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.