ALI, ASHIQ (Migration)

[2021] AATA 4868

ALI, ASHIQ (Migration) [2021] AATA 4868 (9 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ALI, ASHIQ

CASE NUMBER:  1833331

HOME AFFAIRS REFERENCE(S):          BCC2017/3173772

MEMBER:Stephen Witts

DATE:9 December 2021

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 09 December 2021 at 11:27am

CATCHWORDS

MIGRATION – approval of a nomination – position of Café and Restaurant Manager – financial capacity to employ the nominee for at least two years – genuine need for the employment – modestly profitable business – terms and conditions of employment no less favourable – labour market testing – decision under review set aside  

LEGISLATION

Fair Work Act
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 26 October 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 1 September 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 sub regulation 2.72(10)(f) because the delegate was not satisfied that the business was able to financially support the position of Café and restaurant manager or that the business is operating a level consistent with the nominated position being genuine.

4. The applicant’s, Ali Ashiq, appeared before the Tribunal on 9 December 2021 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the nominee, Mrs Poonam Sharma.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was represented in relation to the review by its registered migration agent.

8. 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

9. 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 applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

10. The Tribunal has considered all the material before it including all the material provided prior to the hearing and evidence given in the hearing.

11. In particular the Tribunal notes the delegates decision record dated 26 October 2018 provided to the Tribunal by the applicant where it was stated that the delegate was not satisfied that the position of Café and restaurant manager could be supported financially and that the business was operating at a level consistent with the nominated position being genuine.

12. The Tribunal also notes evidence provided by the applicant including information regarding the applicant’s registered business name, 786 Pakistani and Indian restaurant, its ABN 16798326831 indicating that it is a restaurant based in New South Wales, that has been trading for nine years, that the applicant is an approved standard business sponsor until February 2023, and that in the financial year 2018/2019 it had an annual business turnover of $647,200 and a profit of $72,431 and that in the 2019/2020 financial year it had a turnover of $720,541 and a profit of $126,268.

13. In the material provided it was stated that the restaurant is a dining facility that can accommodate up to 55 donors. It was stated that there is a comprehensive menu and sizeable storage for fresh ingredients in a full commercial kitchen.

14. It was stated that the proposed nominee is Mrs Poonam Sharma and that the title of the nominated position is restaurant manager with a corresponding ANZSCO occupation of café or restaurant manager 141111.

15. It was stated that the nominated position is a managerial position which does not involve low-level skill tasks, that the position pays $55,000 per annum plus superannuation for a 36 hour week and that the nominee has been employed in the restaurant since 2016 and that he is currently on a bridging visa.

16. It was stated that the business currently employs three waiters who are Australian citizens and also three other staff, two chefs who are on a student and bridging visa respectively, and the nominee who is also on a bridging visa.

17. The Tribunal notes that also included was a generic employment agreement for the nominee dated 7 August 2017 entitled “Employment Agreement for Full Time Employees”, a job description, and financial material from the business including BAS statements.

18. At the hearing the Tribunal had a discussion with the applicant and the nominee. Mr Ali, the nominator, stated that his business has been making modest profits over the last few years and made a profit of over $100,000 per annum in the immediate financial year. He stated that he is now 55 years old and only working part-time and relies on Mrs Sharma, the nominee, to run his business for him. He stated that he also runs a takeaway business providing takeaway meals and that he has been also running a live catering business. He stated that he appreciates that his business is actually a small one and that it only employs five staff but that he relies on Mrs Sharma to run the business for him. He stated that his English is not good and that she does carry out the duties and responsibilities of a restaurant manager for the business.

19. At the hearing the Tribunal discussed these matters with Mrs Sharma who provided evidence of the scope of the work that she has been undertaking in the business and after careful consideration the Tribunal finds that the business can sustain the position of Café and restaurant manager, that it has been modestly profitable over the last few years, that the nominee has been working in the business since the end of 2016 and that her employment is still ongoing.

20. On that basis the Tribunal finds that the business can justify the employment of a full-time restaurant manager and that sufficient evidence has been provided regarding her ongoing employment over the last few years in this role.

    The nomination must comply with the prescribed process

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

22. The Tribunal notes the evidence provided that it was made using the approved form, that it has identified the nominee and that it does include the appropriate material including the relevant ANZSCO code.

23. For these reasons the requirements of reg 2.72(3) are met.

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

24. 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.

25. The Tribunal notes that the nominator is a standard business sponsor until 2023.

26. For these reasons the requirements of reg 2.72(4) are met.

    Identification of the nominee

27. 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.

28. The Tribunal notes that the relevant person has been nominated in the nomination.

29. For these reasons the requirements of reg 2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

30. 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: reg 2.72(6)(a) and reg 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: reg 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: reg 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 IMMI 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: reg 2.72(10)(g).

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

32. For these reasons the requirements of reg 2.72(10)(g) are met.

    Information about the nominated occupation

33. 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.

34. The Tribunal notes that the nomination includes the appropriate ANZSCO code for the nominated occupation and that it is provided as part of a nomination that includes the location or locations at which the nominated occupation is to be carried out.

35. For these reasons the requirements of reg 2.72(8A) are met.

    Certification relating to conduct under s 245AR(1)

36. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.

37. The Tribunal notes that the application included the required certification as part of the nomination.

38. For these reasons the requirements of reg 2.72(8B) are met.

    No adverse information known to Immigration

39. 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 regs 1.13A and 1.13B.

40. The Tribunal notes that there is no evidence before it of any adverse information known to the Department.

41. For these reasons the requirements of reg 2.72(9) are met.

    Specified occupation

42. Regulation 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 identified in the nomination in accordance with the 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: reg 2.72(10)(b).

43. The Tribunal notes the evidence as above relating to the nominated occupation and its corresponding six-digit ANZSCO code.

44. For these reasons the requirements of reg 2.72(10)(aa) are met.

45. The Tribunal notes that the nomination need not be supported by a specific organisation in that context.

46. For these reasons the requirements of reg 2.72(10)(b) are met.

    Terms and conditions of employment

47. 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 (Cth).

48. 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: reg 2.57(3A). ‘Earnings’ is defined in reg 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.

49. 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: 2.72(10AA).

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

51. The Tribunal notes the evidence provided that the applicant is employed under the terms and conditions provided by an agreement under the Fair Work Act 2009 (Cth) and that it is equivalent to the employment conditions of an equivalent Australian citizen or permanent resident’s employment conditions and that the nominee’s earnings are no less favourable than those for the relevant Australian equivalent.

52. For these reasons the requirements of reg 2.72(10)(c) are met.

    Base rate of pay

53. 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 relevant  instrument.

54. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: reg 2.72(10A). 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: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.

55. Likewise, the requirement in reg 2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the relevant instrument 2.72(10AB).

56. The Tribunal notes the evidence provided that the nominee’s annual earnings are equal to or greater than the income threshold in the relevant instrument and that the annual earnings and base rate of pay are equivalent to those paid to an Australian citizen or permanent resident.

57. For these reasons the requirements of reg 2.72(10)(cc) are met.

    Certification under reg 2.72(10)(e)

58. As part of the nomination, the applicant must certify various matters in writing: reg 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

    ·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

59. The Tribunal notes the evidence provided regarding the appropriate certification.

60. For these reasons the requirements of reg 2.72(10)(e) are met.

    Position must be genuine

61. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

62. The Tribunal finds as above that the position is genuine.

63. For these reasons the requirements of reg 2.72(10)(f) are met.

    Employment under contract

64. 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.

65. The Tribunal notes the evidence provided regarding the employment contract

66. For these reasons the requirements of reg 2.72(10)(h) are met.

    Work agreements

67. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 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 the applicant, these must have been met.

68. The Tribunal notes that this stipulation is not relevant in this case.

69. For these reasons the requirements of regs 2.72(11) and (12) are not applicable.

    Labour Market Testing

70. 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 ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

71. 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. In addition:

    ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

1. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

2. The Tribunal notes the evidence provided in regard to labour market testing.

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

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.

   Stephen Witts
   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)is any of the following:

   (i) a standard business sponsor;

   (ii) a person who has applied to be a standard business sponsor;

   (iii) a party to a work agreement (other than a Minister);

   (iv) a party to negotiations to a work agreement (other than a Minister); and

   (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.

   (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

   (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 the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; 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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.