1508732 (Migration)

[2016] AATA 4698

1508732 (Migration) [2016] AATA 4698 (30 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Citysight Cleaning Services Pty Ltd

CASE NUMBER:  1508732

DIBP REFERENCE(S):  BCC2015/1530057

MEMBER:Antonio Dronjic

DATE OF ORAL DECISION:  30 November 2016

DATE OF WRITTEN STATEMENT:         30 November 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 30 November 2016 at 1:54pm

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 17 June 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 28 May 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. These 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)(f) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine.

4. The applicant applied to the tribunal on 29 June 2015 for review of the delegate’s decision. With the review application, the applicant submitted a copy of the primary decision record.

5. On 23 September 2016 the tribunal sent a letter to the applicant which contained a request to the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 2.72 of the Migration Regulations. The request was made pursuant to section 359(2) of the Act.

6. On 7 October 2016, the applicant’s representative submitted the following documents:

   ·Legal Submissions;

   ·Duty Statement for Customer Services Manager ;

   ·Organisational Chart for Citysight Cleaning Services Pty Ltd;

   ·Client list and evidence of revenue;

   ·Document headed ‘Demand for Customer Services Managers in Victoria’; and

   ·Copy employment agreement.

7. On 11 October 2016, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 30 November 2016.

8. On 25 November 2016, the applicant’s representative submitted:

   ·Pay Slip of Mr. Anilkumar Chaudhary (Customer Service Manager currently holding a subclass 457 visa);

   ·Pay Slip of Mr. Syed Muneeb Ur Jafri (Customer Service Manager – the nominee)

9. On 25 November 2016, the applicant’s representative submitted copy of the Financial Reports for Citysight Cleaning Services Pty Ltd.

10. Mr Begh, the Managing Director of Citysight Cleaning Services Pty Ltd, appeared before the tribunal on 30 November 2016 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent who attended the hearing. This is the summary of Mr Begh’s oral evidence:

11. The company was registered in 2008 and Mr Begh is the sole shareholder. The business employs 120 employees. Approximately 70% are part time and 30% full time employees. In addition, the business retains services of 80-90 subcontractors (such as waste removal specialist, emergency work and window cleaners). The business operates from offices located in Yarraville. The business turnover in 2015 exceeded $4.4 million.

12. The business employed Customer Service Manager since 2012. Currently, the business employs two Customer Service Managers. Mr Chaudhari is a holder of a subclass 457 visa granted in September 2014 and the nominee, Mr Jafri has been working as a Customer Service Manager since August 2015. The nominee commenced his employment as a cleaner at the sponsoring business in 2011. In 2014he was promoted to a position of a site supervisor. Due to his competency and excellent work performance, the nominee was promoted to his current position within the business. The business employs 16 site supervisors who are reporting to two Customer Service Managers.

13. Mr Begh gave detailed description of tasks undertaken by Customer Service Managers. He gave evidence that the business has written policies and procedures concerning customer relation services that were prepared by him and implemented by Customer Service Managers. He stated that in 2015 the department conducted sponsorship monitoring of his business and find no breaches of sponsorship obligations.

14. For the following reasons, the tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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).

    The nomination must comply with the prescribed process

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

17. The tribunal is satisfied that the applicant company made the application in accordance with the approved form, and paid the prescribed fee, as it was at the time of application. The tribunal is satisfied that this form identified the person proposed to work in the occupation, the ANZSCO code of the occupation and the location of the occupation.

18. On the basis of the Business Nomination Visa form the tribunal is satisfied that the nominating employer has provided the necessary certification stated in r.2.72(10)(d) or (11)(b) (regarding tasks, qualifications and experience).

19. The tribunal finds that r.2.72(3) is satisfied.

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

20. 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.

21. On the basis of the DIBP records for the Citysight Cleaning Services Pty Ltd, the tribunal finds that the applicant was approved as a standard business sponsor for a three year period commencing on 4 march 2014 and that this status remains in effect.

22. The tribunal finds that r.2.72(4) is satisfied.

    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.

24. On the basis of the information provided in the Business Nomination Visa form the tribunal is satisfied that that the applicant has identified the person to undertake the nominated occupation and that he is a subclass 457 visa applicant.

25. The tribunal finds that r.2.72(5) is satisfied.

    Requirements for existing Subclass 457 visa holders

26. 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. In these cases:

    ·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);

    ·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);

    ·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and

    ·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

27. As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.

    Information about the nominated occupation

28. 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 relevant instrument; 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.

29. The applicant stated in the nomination application form that the nominated occupation is Customer Services Manager and provided the corresponding ANZSCO code of 149212. The applicant has recently confirmed this information. The location at which the occupation is to be carried out is also included in the nomination.

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

    No adverse information known to Immigration

31. 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 rr.1.13A and 1.13B.

32. There is no evidence before me to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an ‘associated person’.

33. For these reasons I am satisfied that the requirements of r.2.72(9) are met.

    Specified occupation

34. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument. 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).

35. The tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of a Customer Services Manager and corresponding ANZSCO code 149212 appear on the relevant list in the relevant instrument. The instrument does not require that the nomination be supported in writing by a specified organisation.

36. For these reasons the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

37. 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. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.

38. 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.

39. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in the relevant instrument: r.2.72(10AA).

40. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the relevant instrument : r.2.72(10)(AB).

41. In addition, r.2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment will be greater than the Temporary Skilled Migration Income Threshold specified by the Minister in an instrument (although this may be waived if the circumstances in r.2.72(10A) exist). The current Temporary Skilled Migration Income Threshold (TSMIT) for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028.

42. On the basis of the contract of employment which specifies a base salary of $56.000, which is under the threshold of $250,000, the tribunal finds that the requirements in in r.2.72(1)(c) and r.2.72(10)(cc) apply in this case.

43. The applicant indicated that there is no Australian citizen performing equivalent work at the same location. The applicant has submitted research regarding the market salary rates, including job vacancy advertisements for similar roles in the same location. On the basis of this evidence, the tribunal considers the market rate of pay to be equal to that offered to the applicant. The tribunal is accordingly satisfied that the proposed terms and conditions of employment for the nominated person are no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing equivalent work in the applicant’s workplace at the same location: r.2.72(10)(c) is therefore satisfied.

44. As the base rate of pay of $56,000 for the nominated position exceeds the current TSMIT of $53,900, the tribunal finds that r.2.72(10)(cc) is also satisfied.

    Certification under r.2.72(10)(e)

45. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant  instrument;

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.

46. The applicant has provided evidence to the department and the tribunal at review that the position includes the tasks of the nominated position of a Customer Services Manager listed in ANZSCO. The applicant is lawfully operating a business in Australia and the nominated position is within the company. Having regard to the occupational duties of the position the tribunal finds that the position includes the majority of tasks of the nominated occupation as outlined in ANZSCO.

47. The tribunal is satisfied on the basis of the relevant certifications in the application form that r.2.72(10)(e) is met.

    Position must be genuine

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

49. The tribunal has carefully considered the applicant’s evidence regarding the ongoing need for the position. Not all occupations are included as part of the nomination approval process. To maintain integrity of the nomination and visa process the tribunal must consider whether the position can properly be described as that of a Customer Services Manager.

50. The tribunal has had regard to the ANZSCO description of the occupation of Customer Services Manager. While it is not bound by that description the tribunal is satisfied that the position would involve the type of duties outlined in the ANZSCO.

51. The tribunal has taken into account the evidence regarding the business’s turnover, the position description, the offer of employment, the organisational chart, the financial documents and the statement of need provided by the applicant.  Having regard to the information provided in the application form, including the relevant certifications provided by the applicant, as well as the updated information given to the tribunal regarding the role, the tribunal is satisfied that the position associated with the nominated occupation is genuine. The nominee has been working at the nominated position since August 2015. The business employs another Customer Services Manager who was granted a subclass 457 visa in September 2014.

52. On behalf of the sponsoring business, Ms Begh gave evidence that the nominee has good understanding of the business operations and stated his satisfaction with the nominee’s performance. He also gave a thorough account of the nominee’s role in the business. The tribunal accepts that it is at a level consistent with that of Customer Services Manager as listed in ANZSCO. Further financial information was also provided which demonstrated the strong growth of the business. The tribunal also found the oral evidence at the hearing to be plausible and convincing. On the basis therefore of this additional information and the applicant’s current circumstances the tribunal is satisfied that there is a genuine need for the position and the requirements of r.2.72(10)(f) are met.

    Employment under contract

53. 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.

54. The applicant has submitted to the tribunal an employment contract for the nominee setting out the main terms and conditions of employment.

55. I find on the basis of the evidence before me that r.2.72(10)(h) are met.

    Work agreements

56. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.

57. The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

58. 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.

1. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant instrument.

2. In this case, the nominated occupation is Customer Services Manager. This occupation is classified as Skill Level 2 in the ANZSCO dictionary. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In addition, the position description for the nominated position indicates that the minimum required qualifications for the position are a qualification equivalent to an AQF Associate Degree, Advanced Diploma or Diploma or at least 3 years relevant experience. In these circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the labour market testing condition in s.140GBA.

3. For these reasons, the labour market testing requirements in s.140GBA are not applicable.

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

   DECISION

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

   Antonio Dronjic
   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.