Beeau Tiling PTY LTD (Migration)

[2021] AATA 3421

Beeau Tiling PTY LTD (Migration) [2021] AATA 3421 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Beeau Tiling PTY LTD

CASE NUMBER:  1826382

HOME AFFAIRS REFERENCE(S):          BCC2017/2756564

MEMBER:Jessica Henderson

DATE:19 August 2021

PLACE OF DECISION:  Perth

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

Statement made on 19 August 2021 at 3:47pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – genuine skill shortage or facilitation of migration outcome for nominee – nominating company’s modest turnover – financial records and growth of business, references from client company and photos of nominee at work – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(f), 2.73

CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 August 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 2 August 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10(f) because the delegate was not satisfied that the evidence provided demonstrated that the nomination was lodged to fill a genuine skill shortage, but rather to facilitate a migration outcome for the nominee. The delegate also noted the modest turnover of the business and expressed concerns that the business was not operating at a level that would indicate that the position was genuine.

4. By letter dated 17 March 2021 the Tribunal invited the applicant to provide updated and current information, addressing the criteria in reg 2.72. By letter dated 29 March 2021 the Tribunal received a response from the applicant, comprising 13 pages and attaching some 40 documents. On review of the content of the letter and its attachments the Tribunal formed the view that it was not necessary to hear the matter because a decision favourable to the applicant could be made on the papers.

5. The applicant was represented in relation to the review by its registered migration agent, Mijung Park of Opartners Pty Ltd.

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

   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 reg 2.73.

9. For the reasons set out below in these Reasons, the process in reg 2.73 was followed:

   ·The applicant is nominating an occupation under s 140GB(1)(b): reg 2.73(1A)(a);

   ·The applicant identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: reg 2.73(1A)(b);

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

   ·The applicant has identified the nominee in the nomination: reg 2.73(4)/(4A) and reg 2.72(5);

   ·The applicant has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s 245AR(1) of the Act: reg 2.73(4B); and

   ·The nomination includes the location/s at which the occupation will be carried out, and the name and 6 digit ANZSCO code; as well as the relevant certifications mentioned in reg 2.72(10): reg 2.73(4A).

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

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

11. 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.

12. The Tribunal has received a copy of the applicant’s notification of approval as a standard business sponsor dated 22 May 2018, showing that the approval is effective until 22 May 2023.

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

    Identification of the nominee

14. 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.

15. The nomination identified Dayoung Lee, born [Date], a proposed applicant for the visa to work in the nominated occupation.

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

    Requirements for existing Subclass 457 visa holders

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

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

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

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

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

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

    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, as here; and

    ·the location(s) at which the nominated occupation is to be carried out.

20. The nomination provides the name of the occupation and the corresponding ANZSCO code, being Wall and Floor Tiler, ANZSCO 333411.

21. The nomination provided that the nominated occupation would be employed at Beeau Tiling Pty Ltd, [Address].  The Tribunal accepts that this is an adequate answer to the question of locations at which the nominated occupation is to be carried out, noting that a Wall and Floor Tiler is necessarily likely to be working off the primary site of the business, and that the locations at which the work is carried out are likely to be unpredictable in advance of any particular booking. 

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

    Certification relating to conduct under s 245AR(1)

23. 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.

24. Appropriate certification was provided in the nomination and the requirements of reg 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 regs 1.13A and 1.13B.

26. There is no evidence before the Tribunal to suggest that adverse information is known to Immigration. The Tribunal is satisfied that the requirements of reg 2.72(9) are met.

    Specified occupation

27. Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in 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: reg 2.72(10)(b).

28. Wall and Floor Tiler, ANZSCO code 333411 appears in section 7 of IMMI 17/060.  It is not subject to any inapplicability conditions.

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

30. There is no requirement for the nomination to be supported by a specified organisation and the requirements of reg 2.72(10)(b) are not applicable.

    Terms and conditions of employment

31. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009 (Cth).

32. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). ‘Earnings’ is defined in reg 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

33. 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: reg 2.72(10AA).

34. 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: reg 2.72(10AB), being $250,000.

35. The nomination indicated that there were no Australian employees doing the same work as the nominee.  The Tribunal has not received any updated evidence to the contrary.

36. IMMI 09/113 provides that if there is a fair work instrument that applies or would apply to Australian citizens or permanent residents in the same workplace at the same location and would apply to the person identified in the nomination, then the terms and conditions of employment set out in that instrument are the terms and conditions that would be provided to an Australian citizen or Australian permanent resident to perform equivalent work (Schedule A, s 2(1)).

37. The Tribunal finds that the nominated position is covered by the Building and Construction General On-site Award, which covers employers and their employees in the building and construction industry. The building and construction industry means work done on-site, including any construction, alteration, extension, restoration, repair, maintenance, demolition or dismantling of buildings, structures or works that form part of land.  ‘Tilelayers’ are classified as Level 3 (CW/ECW 3) under the Building and Construction Award, and attract an hourly pay rate of $26.50.

38. The Tribunal has been provided with an employment contract for the nominee dated 29 March 2021 (Employment Contract).  The Employment Contract shows an annual salary of AUD $56,316 with an expected 38-hour working week.  That corresponds to $29.51 per hour.

39. The earnings provided for in the Employment Contract are not less favourable than those provided in the Building and Construction Award.  There is no evidence that the terms and conditions of employment provided for in the Employment Contract are less favourable than those provided in the Building and Construction Award.

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

    Base rate of pay

41. 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, being $53,900.

42. The nominee is being paid $56,316 per annum, according to the Employment Contract. The nominee’s annual earnings are greater than the income threshold specified in the instrument for reg 2.72(10AB).

43. The minimum wage for tilelayers pursuant to the Building and Construction Award is $52,364 per annum, assuming no overtime is included.  Pursuant to IMMI 09/113, the base rate of pay is below the TSMIT exclusive of any overtime.  However, the Building and Construction Award provides for significant overtime payments, and the role of a Wall and Floor Tiler is likely, in the Tribunal’s view, to require overtime work.

44. The Tribunal has been provided with information that the applicant has downloaded from indeed.com showing the average base salary of a Tile Setter in Western Australia to be $62,581.  The Tribunal finds that the base rate of pay for a Wall and Floor Tiler in Western Australia is equal to or greater than the TSMIT.

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

    Certification under reg 2.72(10)(e)

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

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO;

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument 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.

47. The nomination contains the relevant certifications and the requirements of reg 2.72(10)(e) are met.

    Position must be genuine

48. 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.

49. The Tribunal accepts that the primary business of the applicant is tiling.  The name of the applicant business makes it clear, as do the financial records of the business, including a number of invoices for tiling work performed by the applicant as a subcontractor for Easystart Homes, a division of Summit Homes Group. 

50. The business operates out of what is clearly a residential address.  The Tribunal has searched ‘[Address]’ on Google maps and it is clearly a home address, situated in a residential suburb.  Equally clear, however, is the significant trailer with waterproof covering in the front yard, a suitable vehicle for the transit of tiles.

51. Mojo Building provided a reference for the applicant in support of the original application, complimenting the work of the applicant business and noting that the development of the business over time appears commensurate with sponsoring a employee for a visa.  The Tribunal has been provided with a supporting letter for the nominee dated 21 March 2021 from Roger Jones, the director of Mojo Building indicating that he has engaged the applicant as a sub-contractor on “many” projects over the last five years.  He says that over a period of the last three years he has seen and appreciated the standard of the nominee’s work, in which she clearly takes pride and pays attention to detail.

52. The Tribunal has been provided with photographs of the nominee’s work, and of the nominee at work.  They appear to be genuine photographs of the nominee performing the work; the postures and actions of the nominee as caught in the photographs appear genuine, and she is suitably attired and soiled.  The consecutive frames capture a work in progress by the nominee and the Tribunal finds that the effort that would have been required to ‘fake’ the photographs makes it unlikely that such a forgery has been relied upon in the context of the application as a whole.

53. The Tribunal notes that the applicant’s director and the nominee have the same surname and reside at the same address.  One obvious conclusion is that they are related.  The applicant’s director denies any familial relationship and says that the surname is a relatively common one.  The Tribunal does not make any finding as to whether there is a familial relationship between the nominee and the applicant’s director.  The balance of evidence persuades the Tribunal that the position is genuine, irrespective of whether a familial relationship exists.  The Tribunal accepts that it is not a position that has been created to secure a migration outcome for the nominee.

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

    Employment under contract

55. 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.

56. The Employment Contract meets the requirements of reg 2.72(10)(h).

    Work agreements

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

58. The requirements of regs 2.72(11) and (12) are not applicable.

    Labour Market Testing

1. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

2. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:

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

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

3. 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.

4. The Tribunal finds that the labour market testing condition applies, and the position is not subject to any exemption.

5. The Tribunal has before it a ‘summary of domestic recruitment efforts’ dated 31 July 2017 completed on behalf of the applicant by its director, Sang Hyun Lee, showing that the nominated position was advertised on Gumtree.com for a month from 26 June – 26 July 2017, and that the nominee was the most suitable candidate.  That is slender evidence of labour market testing.

6. The Tribunal notes that the State Priority Occupation List rank of an ANZSCO 333411 Wall and Floor Tiler in 2019 was State Priority 2 (no SPOL occurred in 2020 because of the impact of Covid19). State priority 2 is the second-highest level of priority, indicating structural and/or market-driven issues with the occupation are impacting at the State level.  Given the level of State government concern, the Tribunal accepts the slender evidence of labour market testing as sufficient, and accepts that there was no more suitable Australian citizen or permanent resident available to fill the nominated position.

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

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

   DECISION

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

   Jessica Henderson
   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.