1515608 (Migration)

1515608 (Migration) [2016] AATA 4396 (15 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  FUTURE VISION (SA) PTY LTD
CASE NUMBER:  1515608
DIBP REFERENCE(S):  BCC2015/2181009
MEMBER:Kate Millar
DATE:15 September 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 15 September 2016 at 1:26pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Future Vision (SA) Pty Ltd (Future Visions) operates a commercial cleaning business trading as FVSA Cleaning Services and a domestic cleaning services trading as Exit Clean. The directors of Future Visions are Ronakkumar Patel and Gaurang Patel. Future Vision wants to employ Mr Baumik Patel as a Contract Administrator and applied for the approval of a nomination of this position on 30 July 2015. The application was refused by a delegate of the Minister for Immigration and Border Protection on 28 October 2015 under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations), and Future Vision has applied for a review of that decision.
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.
The delegate did not approve the nomination because he was not satisfied that the position associated with the nominated occupation was genuine as required by r.2.72(1)(f) of the Regulations.
Mr Ronak Patel and Mr Guarang Patel appeared before the Tribunal on 19 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Mr Baumik Patel. Future Vision was represented in relation to the review by its registered migration agent.
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
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
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The requirements of r.2.73 are:
· The person 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(4A) and r.2.72(5);
·     The nomination includes the location at which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO code if the applicant is a standard business sponsor: r.2.73(4A).
The nomination includes these particulars, and the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
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.
At the time of the hearing, the approval of Future Vision as a standard business sponsor had ceased. It has lodged an application to be approved as a standard business sponsor the day before the hearing. This has caused considerable delay in this matter. It was again approved as a standard business sponsor on 2 September 2016, and this requirement is met.
Identification of the nominee
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. The application identified Mr Baumik Patel as the person who will work in the nominated occupation, and r.2.72(5) is met.
Requirements for existing Subclass 457 visa holders
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.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide, among other things, the name of the occupation and the corresponding 6-digit ANZSCO code if there is one. The application names the occupation but does not provide the ANZSCO code, however this is readily determined by the title and on balance I find this has been provided.
This Regulation also requires the applicant to provide the location at which the nominated occupation is to be carried out, which it does.
For these reasons the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
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. There is no adverse information before me, and the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 15/092. The positions of Contract Administrator is specified in IMMI 15/092 and the requirements of 2.72(10)(aa) are met.
Terms and conditions of employment
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.
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.
In this case, there are no equivalent Australia citizens or permanent residents in the workplace. The terms and conditions of the position included in the contract (excluding earnings) are consistent with those provided to Australian citizens including 9.5% superannuation, 20 days’ annual leave, 10 days’ sick leave and 10 days’ personal leave per year.
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 instrument IMMI 09/113: r.2.72(10AA). This instrument specifies websites such as Job Outlook ( and the Australian Bureau of Statistics website ( although it also includes relevant remuneration surveys.
Future Vision has provided data from PayScale to support a salary of $55,000. The PayScale information provided shows a range for this occupation of approximately $44,000 to $102,000, and the salary specified by Future Vision falls within this pay band.
Jobs Outlook (accessed 14 September 2016) specifies a weekly amount of $1,387 per week (approximately $72,000 per annum) excluding tax and superannuation. The contract provided by Future Visions does not state whether the amount of $55,000 includes or excludes tax and superannuation. The contract refers to this amount as a “base salary”.
The nominee was requested to provide his personal bank statements after giving evidence that he is paid $545 per week before tax. These statements show a transfer of $500 per fortnight from “FVSA”, which I take to be Future Vision. There are corresponding debits on the same date from one of the Future Vision accounts.
In the submissions accompanying the required bank statements, Future Vision states the nominee is not currently being paid the nominated salary due to conditions on his current visa. The contract date is 2 July 2015 and specifies a 38 hour week. The nominee said that he is paid this amount because he is currently “in training”. There is nothing in the contract about a training wage.
While I have reservations about whether the nominee is to be paid equivalent earnings, the nominee was on a student visa which does restrict the number of hours he can work in a fortnight. On balance, I am satisfied he will have earning equivalent to an Australian citizen or permanent resident, however this may require monitoring form the Department in the future. While the earnings are not equivalent to Jobs Outlook, the pay specified is within the band specified in PayScale and I find that the earnings are not less favourable than for an Australian citizen or permanent resident.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 which is $53,900.
The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
The base rate of pay is $55,000 which is greater than the TSMIT, and the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). Those that apply to Future Vision are:
·The tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO;
·If the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant; and
·The qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
Future Vision provided the necessary certifications in the nomination application and the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
One of the directors manages the commercial cleaning part of the business, and the other has full time employment outside the business. The directors state they need a contract administrator to manage the domestic cleaning aspects of the business. They have purchased another cleaning business called Exit Clean and say they need a person to manage this business. They provided a contract for the purchase of this business, which settled on 3 March 2015.
The delegate expressed concern about the relative turnover of the business and the need for another paid employee. The gross turnover in 2015 was approximately $300,000.
On being asked what this involved, the director stated that they are working under the name Exit Clean in Adelaide and Melbourne, and have started in Sydney, Perth, Darwin and Canberra. The directors said that they work for seven real estate agents in Adelaide, one in Sydney, three in Perth. Neither director could name the real estate agents they do work for in Sydney or Perth. They could name the real estate agents in Adelaide, being Cocks Real Estate, Ray White agencies in Grange and Mawson Lakes and Banner Rosser.
The main tasks of a contract administrator are set out in the Australia and New Zealand Standard Classification of Occupations (ANZSCO). While this is not binding on me, it provides a useful information on the tasks required of this positions, which ANZSCO records as:
·Developing, reviewing and negotiating variations to contracts, programs, projects and services
·Responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
·Managing paperwork associated with contracts, programs, projects and services provided
·Working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
·Advising senior management on matters requiring attention and implementing their decisions
·Overseeing work by contractors and reporting on variations to work orders
·Preparing and reviewing submissions and reports concerning the organisation's activities
·Collecting and analysing data associated with projects undertaken, and reporting on project outcomes
·Reviewing and arranging new office accommodation.
The jobs are allocated to subcontractor by uploading the job to a shared calendar and allocate it to a subcontractor and email the subcontractor. When the job is completed the subcontractor emails the nominee who then advises the real estate agency.
In Adelaide they have three contractors and in Melbourne they have two contractors. In Sydney they have two subcontractors and in Perth they have two subcontractors. They recently got a job in Darwin and had to locate a new subcontractor. They access the subcontractors by putting information on Facebook that they need a cleaner, then the cleaner sends in a resume to the nominee who reviews the resume and sends the cleaner a contract to sign.
Mr Guarang Patel manages the commercial sites City Cross and Salisbury Cinema and checks the work the subcontractors do on site. He said if there are mistakes he tells the nominee who manages it. Mr Patel does cleaning work for the business and for Exit Cleaning. The commercial cleaning is done on a roster made by the nominee and which Mr Patel checks. The commercial jobs have a subcontractor. In City Cross they have 10 to 12 sub-contractors. The contract with City Cross was negotiated by the nominee. On being asked who negotiates the contacts, Mr Guarang Patel said his English is not good so the nominee goes with him.
Mr Guarang Patel works in the business. Mr Ronak Patel works full time and meets with the nominee after hours to approve what they are doing. I am satisfied that the position is required to run the business, particularly after the purchase of Exit Clean.
The directors said that the nominee contacts real estate agents to look for work. He has recently submitted a tender for cleaning for Campbelltown Council. He also suggested they start Exit Clean in Sydney as he knew the market there.
I asked for contracts with the contractors, and copy of the contract for City Cross and Salisbury Cinema. The contracts with contractors were provided, but the contracts for City cross and Salisbury Cinema were not provided. I am hesitant to draw a significant adverse inference from failing to provide these contracts as there was a great deal of information requested during the course of the hearing.
The directors said the nominee meets with the managers of the real estate companies and provides a price list. If the real estate agency is happy with this, they give them jobs. These jobs are individual cleaning jobs for each premises. There is no contract between the real estate agencies and the business, the real estate agents submits work orders. The real estate agents generally have several cleaning agencies.
On being asked to describe an average day for the nominee, Mr Guarang Patel said he updates timesheets, puts jobs in the calendar and contacts new real estate agents and meets with new real estate agencies. He looks for tenders. If someone rings wanting cleaning, the person will speak to the nominee. The nominee puts the job in the calendar and if it is urgent, calls the contractor. The contractor will call Mr Guarang Patel with any problems.
Mr Guarang Patel said the nominee records what has been paid by the contractor. The contractor issues invoices, and sometimes provides these direct to the customer and sometimes sends the invoice to the nominee who forwards to the real estate agency.
If there is a problem with the job, the nominee is contacted. The nominee calls the contractor to rectify the issue. Mr Guarang Patel also attends to check the work. Mr Guarang Patel said that the nominee deals with the customer.
If the contractor sees the house is very dirty and they want to increase the price or the time for the job, the nominee asks the contractor how much extra they are seeking. The nominee contacts customer to explain the problem and emails the customer. If the customer is happy with that the contractor is advised. If the customer is not happy this is conveyed to the contractor. If the contractor is not happy to do the job for the same money the job is cancelled.
If there is a problem with the commercial contracts, Mr Guarang Patel checks the work. The customer may contact the nominee who lets Mr Guarang Patel know about the problem.
On being asked what issues the nominee brings to their attention, the directors said when they took over the company they lost some real estate agencies to other contractors who offered a cheaper price. The nominee negotiated new prices. He also identified the opportunity to tender for Campbelltown Council and prepared the tender.
The nominee gave consistent evidence about his tasks. He provided the correct address for the business. He independently gave evidence of the calendar system used to assign work to contractors. He described the process to recruit a new contractor. He named the major commercial clients, being City Cross, Visy, North Adelaide Heritage Group and work in Salisbury, although he identified that as a school site. The nominee described the invoice system and records he is required to keep. He was reasonably consistent with the directors, but not identical, in terms of which real estate agents provide them with work. He could describe the pricing system. I am satisfied that he works in the business and undertakes the tasks described by the directors.
I am satisfied the nominee performs tasks such as:
·Developing, reviewing and negotiating variations to contracts, programs, projects and services as shown by changes to the work requirements and negotiation between the contractors and the customer.
·Responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected by responding to complaints about the work and arranging rectification of the work.
·Managing paperwork associated with contracts, programs, projects and services provided by preparing rosters, invoicing and monitoring payment.
·Advising senior management on matters requiring attention and implementing their decisions, such as suggesting and preparing the Campelltown tender and assist Mr Guarang Patel with negotiating the commercial contracts.
·Overseeing work by contractors and reporting on variations to work orders.

While this does not cover the same tasks as ANZSCO, I do not think it necessary to replicate ANZSCO but that the position is to perform tasks of that nature.
As I have found the current directors require another person to assist them, the position is consistent with the ANZSCO and the nominee showed a genuine understanding of the position I am satisfied the position associated with the nominated occupation is genuine, and the requirements of r.2.72(10)(f) are met.
Employment under contract
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. A copy of the written contract was provided to the Tribunal, and the requirements of r.2.72(10)(h) are met.
Labour Market Testing
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.
In the case a labour market testing exemption applies by virtue of s.140GBC and IMMI13/137, and the labour market testing provisions do not apply.
While I have had reservations about several of the criteria as they apply to Future Vision, I am satisfied it meets all the applicable requirements for the approval of the nomination.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Kate Millar
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.

[2016] AATA 4396

15 September 2016

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