AUSTONE INTERNATIONAL TRADING PTY LTD (Migration) - [2019] AATA 5612

AUSTONE INTERNATIONAL TRADING PTY LTD (Migration) [2019] AATA 5612 (29 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AUSTONE INTERNATIONAL TRADING PTY LTD
CASE NUMBER:  1719916
HOME AFFAIRS REFERENCE(S):          BCC2017/636806
MEMBER:Alan McMurran
DATE:29 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 29 November 2019 at 6:15pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – genuine position – Managing Director – role does not currently exist – nominee has not worked in the business – tasks and duties of nominated occupation – scope and size of business – excluded position – annual turnover – number of employees – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Canberra Fresh Group Pty Ltd [2019] FCCA 842
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 16 February 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 August 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 16 February 2017. 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72 (10) (f) of the regulations, because the delegate was not satisfied the position exists because of the needs of the business or skilled worker, but rather the position exists to meet the needs of the nominee, and that the weight of evidence provided indicates the nominated occupation exists solely to facilitate the nominee’s stay in Australia rather than fill a genuine vacancy or skill shortage.
The applicant appeared before the Tribunal by telephone on 28 November 2019 to give evidence and present arguments.
The Tribunal received oral evidence from Mr Shengbo Zhao, a director of the applicant (“the director”) and who is also the nominee for the 457 visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal confirmed with the director on commencement of the hearing, during the hearing, and on completion of the hearing that he had understood the interpreter in the Mandarin language. The director made no complaint about the interpreting.
The hearing was conducted as a combined hearing of both the review of the application by the nominator and by the nominee.
The Tribunal explained the hearing process to the director as the applicant’s witness on commencement of the hearing. The Tribunal explained that the evidence given by the director as a witness for the applicant would also be his own evidence in support of the visa application as the nominee. The director confirmed through the interpreter that the director understood the purpose of the hearing and how it was to be conducted.
The applicant was represented in relation to the review by its registered migration agent, Yifu Sun, who did not attend the hearing.
The Tribunal had available to it information from the Department files[1] and from the Tribunal’s related case files for the nomination (this application) and for the nominee.[2] The Tribunal also had available the information and oral submissions provided at the hearing by the director.
[1] BCC 2017/636806 and BCC 2016/3712802
[2] T case file 1722531
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Background
The applicant is an Australian registered corporation (“the company”), carrying on business from retail shop premises at Malabar in Sydney. [3] The nominee is a 49-year-old citizen of the People’s Republic of China.
[3] BCC 2017/636806 at folio 6 (page 3 of application)
The applicant has nominated the director for the role of Managing Director of the company (“the occupation”), as described in ANZSCO 111111 (Chief Executive or Managing Director). The occupation is an approved occupation in the short-term skilled occupation list in the relevant Government Instrument[4].
[4] Immi 16/059 as set out in compilation No. 2 dated 19 April 2017, including amendments
The occupation is subject to conditions set out in the Instrument[5] , which specifies in relation to those occupations for a subclass 457 visa, that positions are excluded in a business:
·which has an annual turnover less than AUD 1,000,000,
·which has fewer than 5 employees, and
·which position has a nominated base salary of less than AUD 90,000.
[5] Ibid note 17
ANZSCO describes ”Chief Executives” and “Managing Directors” in these terms:
“Chief Executives and Managing Directors determine, formulate and review the general policy programs and the overall direction of organisations within the framework established by boards of directors and similar governing bodies”.[6]
[6] ANZSCO 1220.0 version 1.3 updated 4 November 2019
The occupation is described as Skill Level I, being the highest level commensurate with a Bachelor degree or higher qualification, or at least 5 years of relevant experience. The ANZSCO is a useful starting point and guide in terms of the application of the facts and circumstances relevant to the occupation nominated, and whether the nominated position actually exists as at the time of the decision.
The hearing-director’s evidence
The director explained at the hearing that as the nominee, he had been granted a Bridging Visa A (class WA) on 7 November 2016, which he understood was subject to visa condition 8101, which specifies that the visa holder must not engage in work in Australia.
The director explained at the hearing that he had come to Australia in about August 2014, at about the time his daughter came to Australia to complete her schooling, starting in year 10. He said his daughter was currently on a student visa, studying law and finance at Sydney University and had been in Australia for approximately 5 years.
The applicant was asked about his background in China where he said he had a business, MOII Import and Export Co involving manufacture, import and export and established in Ningbo city. He said he wanted to explore the option of bringing the business to Australia. He said his family is still doing business in China involving his wife and younger brother. He said he was introduced to the son of one of his business colleagues in China, Ruoqiang Li (“Mr.Li”) with whom he intends to grow the business in Australia.
Mr Li is a second director of the company (there are only 2), appointed on 1 December 2015 and who the director says is an Australian permanent resident, living in Australia for the past 8 to 10 years. The director said Mr Li was in Australia before him but does not presently work in the applicant’s business. He said Mr Li, who is 29, is studying to become an electrician.
The Tribunal asked about the business and its operation. The director said that he had received advice from colleagues and wanted to learn about doing business in Australia by acquiring a small business. He said he purchased the existing retail shop at Malabar called “Family Grocer Malabar” in about January 2016. He said the applicant acquired the shop and the business which it now owns. He said he paid for the business out of his own funds, approximately $300,000. The director said he obtained advice from his migration agent and lawyer at the time to the effect that he could operate the business through a company entity (the applicant). The Tribunal asked what the director anticipates the business will do, to which he responded sell plastic products, like cups and flower vases manufactured in China and also gardening products, motor mowers, tools and hardware. He said however that when he bought the shop, he simply kept the existing business going (grocer) and employed a person, Maria Wong, to conduct the business as customer service manager and as cashier.
The Tribunal asked about other employees. The director said 3 other persons currently work in the shop who he named as Conglu Zhao, Shijia Fu and Shanjing Liang. He said they were all shop assistants and/or cashiers and all were on visas. Maria Wong however is an Australian citizen and/or permanent resident. There are a total of 4 employees currently working in the company and at the shop. The director said he is not employed by the applicant and does not work in the business. He said Mr Li initially worked in the business for 2 years, 2016 to 2018, as the manager. He said neither he nor Mr Li took a salary or wage or drew any funds from the company.
The Tribunal asked about the company’s financials. The Tribunal referred to the Special Purpose Financial Report provided with the application[7]. The Tribunal asked the director what the company spent on wages annually, to which he responded he had only quarterly reports with him, but agreed the wages would be approximately $120,000-$150,000 per annum. He said the most recent BAS showed turnover for the company in the period from 1 April to 30 June 2019 at $260,513. For the figures available to him for the most recent financial year ending June 2018, the director provided the following, which he said were the figures available from his accountant:
FYE 2018 - Q1 $271,560
Q2 $201,800
Q3 $249,655
Q4 $264,767
Total: $987,782
[7] BCC 2017/636806 at ff 48
The director said the company does not conduct any other business, except the grocer shop at Malabar. The Tribunal asked what the director was himself doing and he responded that he was waiting for the outcome of his visa application.
The Tribunal asked if anyone was currently performing the role of managing director or Chief Executive officer. The director responded that it was Mr Li and that it was the director’s intention to learn about what the role involved for himself, once his visa was approved and he could work in that role. He said he would hope to work together with Mr Li in running the business then, which they would develop as an import-export company in Australia. The Tribunal asked him what he knew about the role, to which he replied he did not understand what a Chief Executive or Managing Director actually did in Australia. He said his current role was to help put the accounts together for the accountant and review quarterly reports. He said Ms Wong was largely unsupervised running the shop, although she reported to him and to Mr Li. He said she was responsible for hiring staff with his approval. The director said he controlled the company’s Commonwealth Bank account and was the signatory. The director said as long as the shop is running itself with Ms Wong in charge, “we do not need to do anything”.
The Tribunal asked the director why the applicant needed a CEO or Managing Director, as the business was effectively running itself through the operation of the shop. The Tribunal expressed concern that having heard the director’s description of the business, the position did not actually exist and informed the director that if the Tribunal found there was no occupation of Chief Executive or Managing Director which existed, that may be the reason or part of the reason why the Tribunal would affirm the Department’s decision.
In response, the director said the company does not “currently need Mr Li to continue the position of CEO”. He said he is currently the director of the company, and both Mr Li and he are executive directors, although neither of them presently works in the role. He said the company does not currently need any direction, as long as the shop is running and he and Mr Li are not required to do anything. The Tribunal explained to the director that he needed to describe what the company required in terms of the ANZSCO guide for determining, formulating and reviewing policy and programs, and why it was necessary to appoint a CEO or managing director.
The director responded that he was unable to understand the Department’s decision and why the Department had refused the nomination application for the occupation, which he says does exist. At that point, the Tribunal read from the delegate’s decision to ensure the director had understood what had been said. He submitted that the Tribunal and the Department should understand it was extremely necessary for the position to be approved, which the company “needs badly”. He said the purpose of setting up the company was to purchase and expand the business in Australia and that acquiring the grocery store would enable him (the director) to better understand the Australian market and how to grow the proposed import-export business.
The Tribunal asked about the email it had received from the applicant’s representative dated 10 October 2019, when the representative was requesting an extension of time for the conduct of the hearing. The email states (verbatim):
“The client instructs me to request an extension for the hearing due to following:
The client has been waiting for the hearing for about 2 years. There are many information and files need to be prepared and updated. Besides, it is the end of 1^st business quarter and the due date to lodge financial statement for last year, the business is currently co operating with the account to prepare those files. Furthermore, the business is a shop. The summer season is coming, the business owner is busy to contact, meet, order and arrange delivery with suppliers. He does not have extra time to prepare and appear on current hearing date.”
The Tribunal asked about whether that email meant the director was working in the business. The director said perhaps the representative had “misunderstood”. The director insisted he was not working in Australia, although he is still working with his business partners in China. He said the reason he was “busy”, was because he was meeting with and introducing colleagues from China to Australia and considering opportunities. The Tribunal was mindful of the ANZSCO lists of tasks for the nominated role, which includes “monitoring and evaluating performance of organisations against organisational objectives and strategies” and whether that may be the main task performed by the director/nominee in this instance, described by him as exploring opportunities, and learning to understand the Australian market. The director however denied this was “work” involved for the applicant and he was “not performing a management role”.
The director was asked how he was surviving in Australia for the past 2 years, and he responded he had income from his overseas business. The director was asked on completion of the hearing whether he wished to make any further comment to which he responded “no”, but hoped that the Tribunal would understand his position.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. If the applicant is unable to satisfy any one of the criteria, the Tribunal is not then required to consider the remaining criteria.
The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.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.
The Tribunal notes that for nominated occupations at Skill Level I, there is an exemption from the labour market testing requirements which might otherwise apply.[8]
[8] Immi 13/137
Position must be genuine
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.
The background of this criterion has been summarised by the Federal Circuit Court of Australia[9] as follows:
“Section 140AA of the Act stated that 1 of the purposes of Division 3A was to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents. Consistent with that purpose, subregulation 2.72 (10) (f) was added in order to strengthen the integrity of the sponsorship program and subclass 457 visas particularly by the introduction of a “genuineness test” to ensure that the position associated with the nominated occupation was genuinely required to address skills shortages in Australia.”
[9] Canberra Fresh Group Pty Ltd [2019] FCCA 842 per Judge Tonkin at par 14
No actual “test” of genuineness has been introduced or mandated, but has been the subject of numerous decisions in this Tribunal and the courts. The seminal decision in Cargo concludes that a proper analysis for a test of genuineness is to determine objectively on the available information whether the nominated occupation really is what it purports to be. That includes a possible analysis from a number of different perspectives, not limited to the actual tasks as described in ANZSCO. Such different “perspectives” may not in themselves be limited, and may vary on a case-by-case basis, but logically would include a consideration of the range of duties and responsibilities anticipated of the occupation, and the associated skill level required to perform the occupation
In this instance, the Tribunal notes the objective circumstances arising as evident from the information provided by the witness and submissions from the director at the hearing, some of which are as follows:
·there is no one currently performing the role of chief executive or managing director for the applicant;
·the nominee is not working in the business and has not done so since his appointment as director on 4 January 2016; this in part as a result of the condition 8101 attached to the nominee’s Bridging visa A;
·the applicant’s business is the conduct of a retail grocery shop at Malabar purchased in about 2016; no details are before the Tribunal about that purchase;
·the applicant has 4 employees, all working in the retail shop; there are 2 directors, neither of whom currently works in the business;
·on the available information, the most recent annual turnover of the business was less than $1,000,000 per annum
·there is no organisational framework such as a Board of Directors or other governing body; there is no current directional planning or organisational management, or institution of policies or programs by a manager;
·the operation of the retail shop is delegated to the present customer service manager, Maria Wong and 3 casual retail staff who operate as shop assistants / cashiers;
·the scope and size of the company’s business does not lend weight to a finding that there is a position for a chief executive or executive managing director, along the lines described in the ANZSCO guide.
The Tribunal must be satisfied on the available information and having heard the submissions that the applicant meets the criterion 2.72 (10) (f) that the position associated with the nominated occupation is “genuine”.

The Tribunal has carefully considered all of the available information and the submissions from the director. The Tribunal has also considered the finding by the Department and set out in its decision. Having considered the material, the Tribunal finds that it does not share the delegate’s view that the position was created merely to meet the needs of the nominee, and for that reason was not “genuine”. Having the benefit of listening to the director’s evidence however, the Tribunal finds that the director has little or no understanding of the actual nominated role and what the tasks and duties involve for a chief executive or managing director. The director’s understanding was that he is intending “to learn” through his experience of having purchased a retail grocery store, which might in some way enable him to grow a significant import-export business.
The Tribunal finds there is simply no evidence at all to illustrate how such a business might develop from the acquisition of the grocery store, or what steps should be taken and by whom. The Tribunal finds that the nominee is not working in the role and no other person is currently performing the tasks or duties outlined in ANZSCO.
The Tribunal has attempted to perform a qualitative analysis in line with the guidance from the case law, of what tasks are being performed in the business and the retail store and by whom, and where the store is the only business operated by the applicant. Having listened to the evidence carefully, the Tribunal finds it is satisfied there is no actual role of Chief Executive or Managing Director which exists in the applicant’s business, or is likely to exist in the near future.
The Tribunal further finds it is satisfied that the applicant does not meet the conditions for the specified occupation in accordance with the relevant Instrument, as the applicant employs only four persons in the business (all at the retail shop), and its current annual turnover is less than $1,000,000.
The submissions from the director are that neither of the directors is currently employed by the applicant in the business, nor draws a wage or any benefit as such, and for the reasons above-expressed, the Tribunal is satisfied that the position associated with the nominated occupation is not genuine.
For these reasons the requirements of r.2.72 (10)(f) are not met.
As the criterion is not met, it is not necessary for the Tribunal to consider any of the remaining criteria for approval of the nomination.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alan McMurran
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.