Auswide Autos Pty Ltd (Migration)

[2018] AATA 3228

Auswide Autos Pty Ltd (Migration) [2018] AATA 3228 (18 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Auswide Autos Pty Ltd

CASE NUMBER:  1611992

DIBP REFERENCE(S):  BCC2016/609697

MEMBER:Amanda Mendes Da Costa

DATE:18 July 2018

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 18 July 2018 at 3:02pm

CATCHWORDS
Migration – Employer Nomination – Approval of nomination – genuine position – payscale – annual salary – satisfactory record of compliance – lawful business – labour market testing – interviewed other job applicants – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 245AR
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 2.57, 2.72, 2.73, Schedule 2 cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 July 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 11 February 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy Regulation 2.72(10) because the delegate was not satisfied that the position associated with the nominated occupation of Motor mechanic (General) ANZCO Code 321 211 was a genuine one.

4. The applicant’s manager, Mr Japanjot Singh Ganda, appeared before the Tribunal on 13 June 2018 to give evidence and present arguments. The Tribunal  is satisfied that he was authorised to do so on behalf of the applicant.  The hearing was held as a combined hearing with the related 457 visa application refusal of Mr Pritpal Singh who gave evidence as a witness.  Additional time was granted to the applicant following the hearing for further evidence to be provided.  

5. The applicant was represented in relation to the review by its registered migration agent, who was present throughout the hearing.

6. 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

7. 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

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

9. Based on the evidence contained in the Department’s file and specifically the application form, the Tribunal makes the following findings:

   ·The applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a) and the applicant identified in the nomination a proposed applicant for a subclass 457 visa as the person who will work in the occupation, thus satisfying r.2.73(1A)(b) ;

   ·The nomination was made on the internet using the approved form and fee: r.2.73(2), (3), (5) & (9);

   ·The applicant identified the proposed visa applicant who will work in the nominated occupation 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, being 2 Dartmoor Court, Meadow Heights, Victoria and the name ‘Motor Mechanic (General)’ ANZSCO Code 321211 since the applicant is a standard business sponsor: r.2.73(4A)(a) and r.2.72(8A).

   ·The Tribunal finds that the requirements of r.2.72(3) are met.

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

10. 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.

11. The Tribunal finds, based on information provided to it during the review, that the person making the nomination is a standard business sponsor having been approved on 2 February 2016 with the period of approval ending on 2 February 2021.

12. For these reasons the requirements of r.2.72(4) are met.

    Identification of the nominee

13. 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.

14. On the basis of the information provided in the nomination form, the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation.

15. For these reasons the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

16. The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:

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

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

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

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

17. 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 and are therefore satisfied.

18. For these reasons the requirements of r.2.72(10)(g) are.

    Information about the nominated occupation

19. 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 IMMI 17/060; 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.

20. The applicant clearly identified in the application form that it was nominating a ‘Motor Mechanic (General)’ to work at 2 Dartmoor Court, Meadow Heights, Victoria. The relevant ANZCO Code 321 211 was listed in the application.  The Tribunal notes that at the time of application this was the premises from which the applicant operated its business.  It has since moved its business premises to 80 Camp Road, Broadmeadows.

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

    Certification relating to conduct under s.245AR(1)

22. 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.

23. The Tribunal is satisfied that the applicant certified on the nomination form that it had not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

24. For these reasons the requirements of r.2.72(8B) are met.

    No adverse information known to Immigration

25. 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.

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

27. For these reasons the requirements of r.2.72(9) are met.

    Specified occupation

28. 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 17/060, and the occupation must be applicable to the person 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: r.2.72(10)(b).

29. The applicant is a Standard Business Sponsor.  It nominated the position of ‘Motor Mechanic (General)’ which is an occupation specified in IMMI 17/060.  The Tribunal is satisfied that the nominated occupation is not subject to any applicability conditions specified in IMMI 17/060.

30. For these reasons the requirements of r.2.72(10)(aa) are met.

31. The instrument does not require that the nomination be supported in writing by a specified organisation and therefore the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

32. 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.

33. 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.

34. 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). The Tribunal is satisfied from the evidence before it that there are no Australian citizens or permanent residents performing equivalent work at the same location.

35. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB).

36. The amount of earnings currently specified by the instrument is AUD 250,000: r.2.72(1)(AB). As the nominee’s earnings are contracted to be AUD 54,000, his annual earnings are not equal to or greater than that specified in IMMI 13/028.

37. The Tribunal has considered the Vehicle Manufacturing, Repair, Services and Retail Award 2010, which it finds relevant to the specific occupation duties of a Motor Mechanic. The Tribunal notes that the occupation of Motor Mechanic is listed in Level 1 R6 and level 1 R7 of the Skill Level Definitions in the Award. The occupation of Motor mechanic is listed in level 1 R6 with a minimum gross weekly wage of $809.10. An employee at Level 1 R7 is required by the employer, as the principal function of employment as determined by the employer, to perform technical duties above and beyond the skills of an employee at R6 to the level of their training, and will possess high level technical and theoretical knowledge and concepts of motor vehicle technology with in-depth knowledge and skill in some areas. A Motor mechanic at Level 1 R7 has a minimum gross weekly wage of $885.10.

38. The Tribunal has consulted PayScale which indicates that the salary range for a motor mechanic is AUD 34,684 to AUD 63,839.

39. The Tribunal has also consulted the Australian Government’s Job Outlook database for the classification of motor mechanic, which records average weekly gross earnings of AUD 1,000, equating to an annual salary of AUD 52,000.

40. Therefore, having regard to the available information and referring to PayScale and Job Outlook the Tribunal is satisfied that the proposed terms and conditions of employment for the nominated position are no less favourable than the earnings and terms and conditions that are provided, or would be provided to an Australian citizen or permanent resident performing equivalent work at the same location.

41. For these reasons the requirements of r.2.72(10)(c) are met.

    Base rate of pay

42. 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.

43. The current TSMIT for the purposes of r.2.72(10)(cc) is AUD 53,900: IMMI 13/028.

44. 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: r.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: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

45. Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).

46. On the basis of the evidence before it, the Tribunal is satisfied that the base rate of pay,  under the terms and conditions of employment  that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work at the same location, would be greater than the TSMIT (i.e. AUD 53,900).

47. For these reasons the requirements of r.2.72 (10) (cc) are met.

    Certification under r.2.72 (10) (e)

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

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in IMMI 17/060;

    ·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 IMMI 13/067;

    ·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 IMMI 13/067; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.

49. Based on information before it, including the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made under dot point three above, and for these reasons the requirements of r.2.72(10)(e) are met.

    Position must be genuine

50. Regulation 2.72(10) (f) requires that the position associated with the nominated occupation is genuine.  As noted above, based on documentation lodged with the Department, the delegate was not satisfied with the nomination of the position of Motor Mechanic (General) for the nominee was genuine.

51. The Tribunal notes that in Cargo First Pty Ltd v MIBP [2015] FCCA 209, Smith J in the Federal Circuit Court considered the meaning of Regulation 2.72(1)(f) as follows:

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

52. This approach was endorsed by Flick J on appeal to the Federal Court of Australia in Cargo First Pty Ltd v MIBP [2016] FCA 30 at [36].

53. More recently, the Federal Circuit Court in Khan v Minister for Immigration [2016] FCCA 333 considered what is required by cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations. The clause is identically worded to r.2.72 (10) (f) in that it requires that the position associated with the nominated occupation is genuine. Judge Manousaridis, having referred to the judgment in Cargo First, held at [14] that:

    … When considering whether the criterion specified in cl.457.223 (4) (d) (ii) of Schedule 2 is satisfied, questions along the following lines may need to be addressed:

    (a)   What is the occupation that has been nominated?

    (b)   How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?

    (c)   What are the tasks the applicant claims he or she has been employed or will be employed to perform?

    (d)   Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation as specified in ANZSCO?

    (e)   If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks she or she will be engaged to perform?

54. The Tribunal has considered the applicant’s nomination of the position of Motor Mechanic (General) having regard to these matters.

55. The Tribunal has considered the applicant’s nomination of the position of Motor Mechanic (General) having regard to these matters.

56. The applicant operates a motor vehicle repair business, which it commenced in 2013.It originally operated the business from the premises stated in the Nomination.  However, in 2014 it moved to its current premises in Broadmeadows, where it now has its repair workshop.

57. Although some of the vehicle repairs are undertaken at the workshop, the majority of the serving and repairs to customer’s vehicle are undertaken ‘on-site’ at the customer’s homes.  In his oral evidence, Mr Ganda told the Tribunal that approximately 20% of servicing and repairs is undertaken in the workshop with 80% being ‘off-site’ at the customer’s premises.  The business has undertaken advertising in local newspapers but predominantly relies on ‘word-of-mouth’ recommendations from existing clients, in attracting new customers.

1. Mr Ganda explained that the business has three mobile service vans, although presently only one is being regularly operated by the nominee.  Mr Ganda said that these vans contained all the usual spare parts and equipment required to service and perform the majority of repairs to customer’s vehicles.  For any work requiring more complex repairs, the business’s repair workshop is used.

2. The business currently employees the nominee on a full-time basis with the assistance of a part-time mechanic.  The nominee has been employed in the business as a mechanic for the past three years.  The Tribunal is satisfied that the tasks that the tasks set out in the Position Description –Motor Mechanic is consistent with the tasks set out in ANZSCO Code 3211211 for a Motor Mechanic (General) and that the nominee has been performing those task throughout the last three years.

3. Mr Ganda told the Tribunal that Mr Singh was a punctual, reliable and knowledgeable employee.  He said that given the position involved the nominee working predominantly on his own at the homes of their customer’s, it required a person with initiative and self-reliance.  Mr Ganda said that the nominee exhibited these qualities.

4. The Company tax return for the applicant, for 2016 and 2017 show that the total income in those years was $140,318 and $160,450 respectively.  The Trading and Loss Statements for the applicant demonstrate that the applicant paid $108,004 in wages in 2016 and $103,850 in 2017.  The figures for wages include the sum of $54,000, being the wages of the nominee during those years.  Following the hearing, the applicant provided the Tribunal with Business Activity Statements for the periods July to September 2017; October to December 2017; and January to March 2018.  These statements indicate a fall in revenue from 2016 and 2017.  However, the Tribunal is still satisfied that the business is capable of supporting an employee in the nominated occupation.

5. By reason of the above, the Tribunal is satisfied that the current nature of the applicant’s business and its levels of business activity and financial viability, together with the qualifications and experience of the nominee, support a finding that the nominee would regularly perform the tasks associated with the ANZSCO Code 321211 definition of a Motor Mechanic (General).

6. For these reasons the requirements of r.2.72 (10) (f) are met.

   Employment under contract

7. 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 an instrument.

8. The Tribunal notes that the applicant has provided to the Tribunal a copy of the Contract of Employment, signed and dated 2 November 2015, for the nominee setting out the main terms and conditions of employment. For these reasons the requirements of r.2.72 (10) (h) are met.

   Work agreements

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

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

    Labour Market Testing

11. 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.

12. On the basis of the evidence before it, the Tribunal is satisfied that the labour market testing condition would not be inconsistent with any international trade obligation of Australia determined by the Minister (s.140GBA(1)(c) and that the major disaster exemption does not apply (s.140GBB). 

13. For the purpose of s.140GBA, 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 IMMI 13/136. In addition:

    ·the nomination must be accompanied by the evidence specified in s.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.

14. 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.

15. Occupations which are classified in ANZSCO as Skill levels 1 and 2 are specified for the purposes of occupational exemptions to the labour market testing requirements in s. 140GBC(4) of the Act; IMMI 13/137.  In this case the nominated occupation is Motor Mechanic (General) ANZSCO Code 321211.  As this occupation is classified as Skill level 3 in the ANZSCO dictionary, it is not exempt from the labour market testing requirements in s.140GBC (4) of the Act.

16. The Tribunal notes that in the Nomination, the applicant certified that it had conducted labour market testing within the three months preceding the Nomination. 

17. The Tribunal finds that the labour market testing was conducted by the applicant, by means of advertising the position of Motor Mechanic on the ‘Seek’ recruitment site.  The Tribunal notes that the Nomination was accompanied by a payment receipt, as evidence that these advertisements had been placed by the applicant.

18. The applicant further certified in the Nomination that there was no suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position and that no Australians or permanent residents were made redundant or retrenched from positions in the nominated occupation in a business or associated entity of the sponsor.  

19. In his oral evidence Mr Ganda confirmed the information contained in the Nomination regarding labour market testing.  He explained that before employing the nominee he had interviewed several other applicants for the position of Motor Mechanic with the applicant.  He said that the other applicants were not suitable for the position as they lacked the initiative, commitment, customer relations skills and ability to work independently, which were necessary to the role and were characteristics displayed by the nominee.

20. Having regard to the evidence and information before the Tribunal, it is satisfied that a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position and a suitably qualified and experienced temporary visa holder is not readily available to fill the nominated position.

21. Based on the above, the Tribunal is satisfied that the applicant conducted labour market testing within the period specified in IMMI 13/136.

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

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

    DECISION

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

    Amanda Mendes Da Costa
    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.

    (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.