Barakah Housing Pty Ltd (Migration)

[2020] AATA 2928

Barakah Housing Pty Ltd (Migration) [2020] AATA 2928 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Barakah Housing Pty Ltd

CASE NUMBER:  1715590

HOME AFFAIRS REFERENCE(S):          BCC2017/217388

MEMBER:Wan Shum

DATE:28 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 28 May 2020 at 2:40pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Developer Programmer – genuine position – employment contract and position description – size and nature of the business – small number of projects – full-time position not warranted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 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 Immigration and Border Protection on 30 June 2017 to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. 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. In this case, Barakah Housing Pty Ltd (the nominator) applied for approval of a nomination as a standard business sponsor for the nominated occupation of Developer Programmer (261312) on 17 January 2017. The person identified for the position was Mrs Fatima Kaneez.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) as the delegate did not consider the position associated with the nominated occupation was genuine.

5. The related visa application was refused because the nomination had not been approved.

6. Applications for review were lodged in respect of these decisions and each party was represented by the same registered migration agent.

7. The Tribunal invited the nominator to appear before it on 28 January 2020. The Tribunal received a request for postponement of the hearing, which it agreed to. The hearing was rescheduled for 11 February 2020, and Mr Bhuiyan, the Director, appeared on behalf of the nominator to give evidence and present arguments in relation to this case, and two other nominations under the 457 program and under the Employment Nomination Scheme. The Tribunal also received oral evidence from Mr Md Arifuzzaman Khan, Ms Aanal Parikh and Mrs Fatima Kaneez, who are all seeking visas on the basis of employment with the nominator. 

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the criteria for approval of the nomination are met. 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.

10. The nominator is a property development business, involved in land acquisition and subdivision. The lots are then sold to builders for development after water and electricity connections are established. The business was registered on 20 August 2014. The directors are Mr Bhuiyan, the CEO, and his wife, Zesmin Nahar. At the hearing, Mr Bhuiyan said that they have delivered two projects, Ponds View and Barakah Rise, while a third is awaiting DA approval. They handed over Ponds View at Schofields, a suburb in Sydney, NSW in 2017, which is partially complete, and Barakah Rise in 2018. Mr Bhuiyan told the Tribunal that the upcoming projects will have a total of 200 lots, and around 82 apartments, so he will need around three sales representatives. In 2017, they sold 37 lots; but there will be more than 200 in future. He advised that the nominator did not hand over any projects last year; they had been waiting on approval from Camden Council which was delayed because of a court case. The Tribunal was provided with relevant documentation regarding the court matter. It appears, based on a document submitted after the hearing, that the ‘current’ project is Ruby Red at Ingleburn Road, Leppington comprising of 37 lots and 93 apartments and there are two ‘future’ projects, one located at Byron Street, Leppington comprising of 57 lots and one located at Kelly St in Austral, with lot numbers labelled as ‘to be advised’. In the same document, Ponds View was “labelled as Project 1 (Near Past)”.

11. The nomination was accompanied by a statement in the submission of 1 May 2017 that the “sponsor has an annual business turnover of $18 million” and is a relatively young business where no marketing and sales policies and marketing strategies have been established. The financial statements provided to the Tribunal reflect sales of $1,662,711 in 2018/19 and $1,885,592 in 2017/18, which was an increase of $312K from the previous financial year. This is far below the $18 million stated in the submission. The BAS provided for the 2019 calendar year indicate that for the 12-months to 31 December 2019, sales totalled $1,134,008 and wages totalled $145,000. Over that period, sales decreased from over $430,000 in the first half of 2019 to $300,000 in the second half of 2019. 

12. The Tribunal has before it four nominations made by the same nominator which were all refused by the Department. The matter that is the subject of this review is one of three nominations made by the nominator as an approved standard business sponsor (SBS) and the then 457 visa program. The other nomination was made under the Employer Nomination Scheme (ENS). The information before the Tribunal is that each of the four nominees for these positions had previously been nominated by Orbit Dimension Australia Pty Ltd (Orbit Dimension) for the same position/occupation under the 457 visa program and/or the ENS. The nominee in this case was previously approved as a Sales and Marketing Manager for Orbit Dimension under the 457 program.

13. Orbit Dimension was previously operated by Mr Bhuyian, who has IT qualifications, with the business providing IT development services. However, that business ceased operations after it entered voluntary administration in 2015. According to the ASIC website, the insolvency order in respect of this business is dated 25 September 2015.[1] Mr Bhuiyan gave evidence that an administrator was appointed but the matter was resolved and he paid his employees and the creditors in full and closed the business in 2016. Mr Bhuiyan stated that he had originally considered running the property business under the same ABN but due to tax issues, his solicitor advised against this and he formed a new company, Barakah Housing. He moved the property development activities, positions and needs across to the new entity. The trading name is similar to that of a business that has been operated in Bangladesh by his parents and relatives, Total Barakah Housing. The overseas business develops property in Bangladesh and has been operating for around 20 years. The Australian business is not a subsidiary although he did take over Total Barakah Housing around 2 years ago.

    [1] Accessed 6 March 2020. According to other notices on the website, the business was subject to a Deed of Company Arrangement and a first and final dividend was declared in 21 December 2017.

14. Of the four persons named in each of the nominations, only Mr Khan is currently employed on a permanent basis by the nominator. He has been nominated under the ENS as a Marketing Specialist. The business employs three permanent staff, which are the Directors, being Mr Bhuiyan and his wife, and Mr Khan. Ms Aanal Parikh had worked on a casual basis for the nominator for the two months prior to the hearing. The nominee for this matter, Mrs Fatima Kaneez, is not currently employed by the nominator.

15. According to the first copy of the Genuine Position Report dated February 2020 submitted before the hearing, the business engages a number of external contractors including surveyors and engineers, building and construction companies, lawyers, accounting and finance, IT Development and Security, Sales and Service, Customer Service Management and Marketing Manager. Under each heading, the nominator provided details of persons or companies that have been engaged for each of these services. While the table of external contractors is presented in a way which suggests that the persons or companies listed beneath have been engaged for each of these services, upon clarification of the initial version at the hearing, Mr Bhuiyan confirmed that those listed under ‘IT Development and Security’, ‘Customer Service Management’ and ‘Marketing Manager’ had not worked for the nominator other than Ms Aanal Parikh. The Tribunal notes that under these headings he had set out the names of the persons that had been named in the other applications made under the 457 program. Mrs Kaneez, named under ‘IT Development and Security’ confirmed that she had never worked for the nominator. She was previously employed at Orbit Dimension before it was wound up. Ms Parikh’s recent employment could not properly be described as that of a Sales and Marketing Manager. In the amended version provided after the hearing, the headings ‘IT Development’ and ‘Marketing Manager’ have been removed and appear in the future organisation chart.

16. The future organisation chart sets out 5 positions in total, with Ms Nahar in the top Director position, followed by Mr Bhuiyan in the position of CEO, with and the positions of Marketing Specialist, Sales and Marketing Manager and Application Support Developer reporting directly to the CEO. The Tribunal notes that the organisation chart of the nominator has changed considerably since the nomination was lodged, which allowed for 12 positions. Mr Bhuiyan gave evidence at the hearing that the team would not include technical staff such as engineers, which were included in the organisation chart given when the nomination was made.

17. In terms of the future vision, Mr Bhuiyan gave evidence at the hearing that it is to have an in-house sales and marketing team to carry out the same activities as real estate agents, selling directly to the home-owner, advertising, designing signs, boards and brochures. This is the model for the Bangladesh business, where they have an internal sales team as there are no real estate agents in Bangladesh. Mr Bhuiyan wants his own sales team and he did not need a Developer Programmer right now, as they do not have a team in place.

18. When asked how the lots are currently advertised, Mr Bhuiyan said it is all done through real estate agents, and websites such as realestate.com.au and domain.com.au. Some of the marketing is currently undertaken by Laing + Simmons, All Property Pty Ltd, LJ Hooker and they do a lot of work for free. The Tribunal accepts that the nominator has utilised the services of real estate agents for marketing and selling their lots and that this expenditure is reflected in the item line ‘Agency fees’. In the Genuine Position Report, the agents’ names are set out under the ‘Sales and Service’ section of the external contractors table.

19. In the Genuine Position Report provided after the hearing, the nominator claims that the “nominated roles are central to the planning, development and implementation of marketing campaigns to best support sales efforts across each property development project. Application developer will work on current and future project for managing IT departmental job including web designing, security and artificial intelligence. To that end, the roles will focus on developing, coordinating and executing plans, strategies and campaigns to reach defined target markets including local & overseas ethnic investors, owner-occupiers and first home buyers. This includes developing measurable marketing campaigns that best promote the benefits of each property development project across each target market segment, and brand the business as a property developer of choice in Western Sydney.”

20. The reasons given at the hearing as to why a Developer Programmer is needed is because Mr Bhuiyan wants to engage an application developer to look after the website and to enable responsive changes to Facebook/Twitter accounts and prompt upload of brochures. Currently he uses a team in Bangladesh and the agents he uses for sales and marketing also create signs and brochures. The main issue with this arrangement is that it takes time; it needs to be done quickly. Currently he sends requests to AOZ, a printing and design company, or to a team in Bangladesh. When asked how long this takes, he said that AOZ are pretty quick, they send him the proof within a couple of working days and he then needs to ask the team in Bangaldesh to upload it and that can take about a week. Mr Bhuiyan wants his own sales team. He said that he does not need Mrs Kaneez right now, as they do not have a team in place. As to whether it would be a full-time position, Mr Bhuiyan said it would be and that there would be a need for example if 1,000 people all jumped on-line at once. He explained that his plan is to have an application that can be downloaded on the mobile and the product and available stock can be checked. He needs a Developer programmer to maintain and keep the website safe and running. He confirmed that maintenance and feeds are currently done by the team in Bangladesh. The Tribunal referred to the financial statements and noted that the amount spent on IT Support and Software was minimal. He agreed but said that the quality was not high and that some of the expenditure would be reflected under agency fees and also under advertising and marketing.

21. In terms of this claim, it is unclear what proportion of the expenditure under agency fees and advertising and marketing could be attributed to IT expenditure and how much it was. The Tribunal notes that the total amounts were as follows: $139,710 on advertising and marketing in the 2017/18 financial year, and $52,140 in agency fees, with advertising and marketing decreasing to $117,851 and agency fees falling to $12,140 in the 2018/19 financial year.

22. In the document provided after the hearing, Mr Bhuiyan wrote:

    Application Support Developer will be a great asset for BARAKAH HOUSING intellectual property. IT team together external and internal will work to produce a savings platform application where buyers will be able to deposit their money within a time frame to secure their land or unit or land and house package in a small portion. In this current time an in house IT developer will be great to do that. The problem with third party is they sale same application with other clients and also the ideas.

23. Mrs Kaneez confirmed she had last worked as a developer programmer in 2016 when she was employed at Orbit Dimension. She confirmed that she had been nominated by other employers for the same position since the refusal that is under review. However, all of those were also unsuccessful.

24. Following the hearing, the Tribunal wrote to the nominator in relation to a non-disclosure certificate that had been issued in respect of material that had been given to it by the Department seeking comments as to its validity. The material included details of a monitoring investigation conducted on Orbit Dimension carried out by the Department in 2014, following an allegation. The Tribunal did not consider the certificate to be valid as it did not appear to contain a public interest reason for not disclosing the information. The representative responded stating that it did not consider the certificate to be valid and requested the information covered by the certificate to be released. The certificate was later revoked by the Department and a copy of the material that could be released was given to the nominator under s.362A. The Tribunal allowed a two-week period to provide any comments on the information that was released. No comments were received. In terms of the material provided to the Tribunal in relation to the investigation and the recommended cancellation and bar of Orbit Dimension as a standard business sponsor, the investigation occurred over 5 years ago. The material was not considered relevant to this nomination and was not relied upon in reaching the decision in this matter, or any of the other nomination matters.

25. The Tribunal will now proceed to address the reason for refusal.

    Position must be genuine

26. 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.

27. The occupation nominated was Developer Programmer, and the Tribunal has had regard to the ANZSCO description of 261312 Developer Programmer, which sets out that a developer programmer: interprets specifications, technical designs and flow charts, builds, maintains and modifies the code for software applications, constructs technical specifications from a business functional model, and tests and writes technical documentation. Alternative Titles: Applications Developer, ICT Developer, ICT Programmer. Skill Level: 1 Specialisations: Communications Programmer (Systems); Database Developer; Database Programmer (Systems); Network Programmer; Software Developer; Software Programmer.

28. In assessing the position, the Tribunal has considered the evidence presented, including the employment contract and position description. The Director gave evidence that it would include making changes to Facebook/Twitter pages, uploading brochures to the website and maintaining the website, amongst other things. While such duties align with the occupation of Developer Programmer, having considered all the information provided, the Tribunal has formed the view that the position associated with Developer Programmer is not genuine.

29. This is because, in the Tribunal’s view, the size and nature of the business does not warrant a full-time Developer Programmer. While it may be “useful” to have an internal position dedicated to application development, the  level of expenditure on IT support and software in recent years has been low (less than $3,400 in each of the past 3 financial years) and does not in the Tribunal’s view support a requirement for a full-time developer programmer.

30. Mr Bhuyian claimed that some of the fees being paid to agents and for advertising and marketing would include related IT expenditure, although he also said that agents do a lot of that kind of work for free. Even if a proportion of agents fees could be attributed to IT, it is unclear on the evidence how much this would amount to and, while the Tribunal has taken into account the plan to reduce reliance on agents in the future, the level of business activity of the nominator at any given time varies considerably. For a company which is actively developing or planning a small number of projects at a time, the Tribunal does not consider that the position of Developer Programmer is required. Mr Bhuiyan referred to companies like Stockland and Mirvac who had systems to enable checking of stock available for sale. These companies are two of the largest developers in Australia and have multiple development projects occurring at any given time, with their own sales, technology, HR and property management teams. The nominator currently employs 3 people on a permanent basis, which includes the two directors, and has two planned projects. Although Mr Bhuiyan has aspirations and plans for the business, the nominator is a modest business and in the Tribunal’s view, simply cannot be compared to these companies. It has taken into account Mr Bhuiyan’s evidence that an Application Developer is only needed if there is a sales team in place and they will need up to 3 sales representatives for their upcoming projects. It is noted however that the latest organisation chart given to the Tribunal does not include any sales representative positions.

1. In terms of the activity levels of the nominator and upcoming projects, while the Tribunal acknowledges that the nominator has successfully completed the first two projects, and handed out 49 lots, 7 duplex houses, with a further 157 to 200 lots in future, Mr Bhuiyan also gave evidence that one of the projects, the proposed Leppington development, had been delayed because of Court litigation. Given the size of the business, the Tribunal considers that that there would be periods of limited activity, for example between projects and/or while awaiting approval of development applications by the relevant Councils. There would thus be times when there would be insufficient work for a full-time Developer Programmer to carry out the tasks set out in the contract and position description.

2. While the achievements to date are commendable for a business that started a few years ago, the Tribunal considers that having the level of supply and demand to warrant a full-time developer programmer at this time is speculative. The Tribunal does not consider the plans of the nominator for expansion are realistic based on the evidence given of the current size of the business and the planned projects. Given this, it does not consider that the position is genuine.

3. For these reasons the requirements of r.2.72(10)(f) are not met.

4. Given this finding, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

   DECISION

5. The Tribunal affirms the decision not to approve the nomination.

   Wan Shum
   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.