BIJAYALAXMI PTY LTD (Migration)

[2018] AATA 2419

BIJAYALAXMI PTY LTD (Migration) [2018] AATA 2419 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  BIJAYALAXMI PTY LTD

CASE NUMBER:  1615253

DIBP REFERENCE(S):  BCC2016/2042601

MEMBER:Denise Connolly

DATE:5 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 June 2018 at 4:00pm

CATCHWORDS
Migration – Nomination refusal – Cook ­ – Not a standard business­– Genuine need for the position – No evidence to demonstrate financial capacity to provide the terms and conditions set out in the employment contract – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140GB, 359
Migration Regulations 1994, rr 2.57, 2.72, 2.73

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 1 September 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 14 June 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 applicant trades as Café the Annapurna in Belconnen ACT. It has nominated Mr Ashok Subedi to work in the occupation Cook (ANZSCO 351411). The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because he formed the view the business is relatively small in scale with a limited menu, and therefore the nominee would not be performing the tasks of a Cook as described in ANZSCO.

4. Mr Arun Subedi appeared, on behalf of the applicant, before the Tribunal on 5 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ashok Subedi, the nominee.   

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 s.140GBA have been met: s.140GB(2).

2. The applicant provided the following information to the Department.  The nominee will be employed as a cook in a café situated in the Belconnen Fresh Fruit Market. He will be paid a base salary of $54,000 per year to work for 38 hours per week. His responsibilities and duties will be as follows:

   ·     cooking and preparing the dishes on the menu

   ·     developing and changing the menu from time to time as required

   ·     training and mentoring subordinates in the kitchen

   ·     following and maintaining OHS procedures in the kitchen

   ·     maintaining tidiness and cleanliness in the kitchen

   ·     stock rotation and reordering

   ·     presentation and plating of food.

3. The applicant provided the following information:

   ·     evidence of labour market testing and the median salary for a cook

   ·     the nominee’s references

   ·     the business’ rent schedule

   ·     a description of the venue indicating it has 16 tables

   ·     photographs of the business, including the specials menu

   ·     a copy of the regular menu

   ·     an organisational chart and a list of the business’ employees which shows that there are two cooks, a cook vacancy and an apprentice chef

   ·     various letters of support from customers

   ·     evidence that the business is trading lawfully

   ·     a copy of the employment contract signed by the owner of the business and the nominee on 14 June 2016 confirming the applicant will be paid a salary of $54,000 per year and 9.5% superannuation to work 38 hour week.

4. The applicant provided a written submission addressing various issues relating to the r.2.72 requirements. It is submitted that the café features a varied, seasonal menu with dishes ranging from chicken burgers, traditional Nepalese dumplings, gourmet sandwiches, an all-day breakfast and buttermilk pancakes. The restaurant seats 51, 19 seats inside and 22 seats outside. The business uses quality crockery and cutlery and dishes are professionally presented. There is table service and orders are taken at the table. It is submitted that the nominee has been working in the position since May 2015 and that he plays a vital role as the most experienced person in the kitchen which includes providing guidance to the junior kitchen staff.

5. In response to a s.359(2) invitation inviting the applicant to provide information demonstrating that all of the requirements of r.2.72 are met, the applicant provided evidence to the Tribunal (much of which was provided to the Department) including the following:

   ·     a letter stating the nominee has been working in the position of Cook for the business since September 2014, performing the duties set out in the nomination application, listed above

   ·     letters of support and references

   · a written submission addressing the requirements of r.2.72.

6. The applicant did not provide any financial documentation demonstrating its financial capacity to provide the terms and conditions set out in the employment contract.

7. At the hearing the Tribunal discussed with the applicant the requirements of r.2.72, including that the applicant demonstrates the business is able financially to provide the terms and conditions set out in the employment contract. It explained that if one requirement of r.2.72 was not met the nomination could not be approved. The following is a summary of the evidence provided at the hearing.

8. The applicant confirmed that the nominee is his brother.  The nominee has been working in the position required by the business, the subject of this application.

9. The applicant confirmed that the business is located within the Fresh Food Market in Belconnen, ACT. It trades from 7am to 5pm.  Occasionally the business might be open for dinner for a big booking. The fruit market trades from 6am to 6pm. It is open five days a week, from Wednesday to Sunday. The café has a seating capacity of 50. The café takes both bookings and walk-ins. It sells takeaway food which makes up about half of the business’ trade.

10. The applicant employees two wait staff on a casual basis. They both work about 20 hours per week. The applicant himself sometimes works at waiting. He is an all-rounder; working both in the kitchen and as a waiter, as well as the management. Customers come to the counter and pay their bill by credit card or cash. Food is ordered both at the counter and at the table when it is not too busy. The food is served on restaurant crockery.

11. The Tribunal asked about the business’ payment of wages and whether his staff are paid in accordance with an award. He claimed that his staff are paid by bank transfer by the accountant and that they are paid award wages and superannuation, according to Fair Work. The wait staff Guargan Phal and Kamar Singh Kamand, are student visa holders. They work up to 20 hours a week. He claims he gives the money to the accountant who arranges their payments. The Tribunal noted that the applicant had changed his evidence regarding the way in which his staff are paid. It noted it had not seen any evidence of this and asked that the applicant provide bank statements from 1 January 2017 to 31 March 2018 showing that the business pays its staff by bank transfer and that they are paid award wages. The applicant then said they are paid in cash as well. He agreed to provide the bank statements for the period sought.

12. The applicant explained that the Fresh Fruit Market charges for advertising as part of the rent. It advertises on the TV and radio and in magazines and local papers. The business is advertised as both eat-in and take-away.  The restaurant is busy on the weekends at breakfast and at lunch time during week days. It is located near the AFP so it has a lot of customers from that agency during the week.

13. The Tribunal asked about the business’ turnover in the 2017 financial year. The applicant claimed he did not know, had no idea about the turnover. He needed to talk to the accountant.  He could not explain why he did not have a rough idea of the business’ turnover. The Tribunal asked that the applicant provide from the ATO portal the BAS for the four quarters for the 2017 calendar year and the company tax return. The Tribunal explained that this information is important for the Tribunal to consider the business’ turnover, financial capacity and salary expenditure. The applicant agreed to provide the bank statements for the business from 1 January 2017, the four BAS statements from the ATO portal for the 2017 calendar year, and the company tax return for the 2017 financial year. The Tribunal explained it might give less weight to a financial statement prepared by his accountant than to evidence from the ATO portal because that records the information the ATO has used to calculate the business’ tax liability. The Tribunal explained that this information is important in its assessment of the whether the business will provide to the nominee the terms and conditions set out in the employment contract. The Tribunal explained that it is concerned as to whether the business has the financial capacity to provide those terms and conditions.

14. The Tribunal also asked the applicant for evidence that the business has been paying the staff superannuation. It noted this will be recorded in the tax documents sought. It explained this is also relevant to its consideration of whether the nominee will receive the superannuation recorded in the employment contract as part of his terms and conditions.

15. The Tribunal raised its concern that it had not seen evidence demonstrating that the applicant has the financial capacity to provide to the nominee the terms and conditions set out in the employment contract.  It asked if the nominee has been receiving the base salary set out in the employment contract of June 2016, $54,000. The applicant claimed that the business has been paying the nominee in accordance with that contract. He indicated he has been paid by bank transfer. He then said that he sometimes gives the nominee cash as at times there is not enough money in the bank account.  He claimed he has been paid his superannuation entitlement. The Tribunal asked if he could provide the nominee’s Notice of Assessment for the 2017 financial year confirming that the nominee has been paid the base salary set out in the contract. He agreed to ask. 

16. The Tribunal raised its concern that the applicant has indicated that at times there are insufficient funds in the bank account to pay the nominee by bank transfer. It explained that this might indicate the business cannot afford to provide the terms and conditions of employment in the contract.  The applicant indicated he gives the money to the accountant who deals with it. He indicated the nominee can also use the business’ car. He confirmed the nominee has been working full-time, 38 hours a week. He starts at 8am and finishes at 4pm.  He claimed he never does overtime. When asked about breakfast and functions the applicant claimed that he opens the café for breakfast and deals with any functions.

17. The Tribunal discussed the menu with the applicant. He explained that there are seasonal changes to the menu, twice a year. However the breakfast menu stays the same. He and the nominee discuss the menu changes. The menu was last changed six months ago.  Sometimes the business has functions and the business prepares whatever the customer wants. They last held a function a month before hearing.

18. The applicant stated that the nominee supervises the kitchen staff.  The applicant supervises staff as well but he is mostly in the café. There are two cooks; Rosum Maniful, an apprentice chef and Bisal Kadel who is also training to be a cook.  The applicant described the kitchen as having an oven, cooktops, chargrill, flat plate, deep fry and three commercial fridges. It does not have a liquor licence.

19. The applicant described the business’ needs for the position; to cook, prepare food, change the menu seasonally, monitor all work in the kitchen, train new kitchen staff, organise the order of service and plate presentation. The position determines the specials which change every week. The position marinates chicken, makes dumplings and prepares sauces. The kitchen accommodates vegan and gluten free diets.  The position also prepares some fast foods such as burgers and chips as the office workers like these options.

20. The Tribunal discussed the other various requirements of r.2.72. The applicant confirmed the business is an approved standard business sponsor. The nominee holds a bridging visa but was the holder of a Subclass 457 visa. He worked for another business which closed. The applicant then explained that the nominee had his Subclass 457 visa sponsorship transferred to the applicant in 2015 and he has been working in the nominated position of Cook since then. The nominee has worked as a cook since 2010. He has the required level of English language proficiency. There is no adverse information known to the Department. The applicant claimed he advertised the position on Gumtree in August and October 2015 and January 2016 but only a couple of people responded.

21. The nominee gave evidence regarding his employment which was consistent with that of the applicant.

22. At the end of the hearing the applicant agreed to provide to the Tribunal by close of business 13 April 2018 the business’ bank statements from 1 January 2017 to date, the four BAS view activity statements from the ATO portal for the 2017 calendar year, the nominee’s ATO Notices of Assessment for the 2016 and 2017 financial years, evidence the nominee has been paid superannuation in accordance with the law and photographs of the café.

23. After the hearing the applicant provided:

    ·Photographs of the café, its patrons and various food items

    ·BAS for January 2016 to March 2016

    ·BAS for July 2016 to September 2016

    ·BAS for October 2016 to December 2016

    ·Mr Arun Subedi’s CBA Business Transaction Account statements for July 2014 to December 2014, and October 2015 to June 2016

    ·PAYG payment summaries issued by the applicant to the nominee recording gross payments of:

    i.$41,538 in the 2017 financial year

    ii.$53,999 in the 2016 financial year

    iii.$38,423 in the 2015 financial year (for the period 14/10/14 to 30/6/15)

    ·Evidence regarding labour market testing.

Terms and conditions of employment

1. 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.

2. 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.

3. 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).

4. 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).

5. The Tribunal has considered the employment contract dated 14 June 2016 provided with the application indicating the nominee will be paid a base salary of $54,000 plus 9.5% superannuation.  The Tribunal notes that at the hearing the applicant stated he was paying his staff in accordance with the relevant award. It notes that the Restaurant Industry Award 2010 includes the occupation Cook and under this award the adult full time weekly rates for Cooks are as follows: $742.30 per week for a Cook -  grade 1 (or approximately $38,599.60 per year), $767.80 per week for a Cook – grade 2 (or approximately $39,925.60 per year), $809.10 per week for a Cook – grade 3 (or approximately $42,072.20 per year), $859.80 per week for a Cook – grade 4 (or approximately $44,709.60 per year), and $882.80 for a Cook – grade 5 (or approximately $45,905.60 per year).  While the applicant stated he pays his staff in accordance with the award the documentary evidence provided with the nomination application appears to rely on market rates. The business provided evidence from Payscale ( indicating a national average salary of $49,000 and other material, including job advertisements for cooks from Seek and Gumtree indicating salaries between $50,000 and $55,000 plus superannuation for positions located in or around the ACT. On the basis of all of this material the Tribunal is satisfied that a base salary of $54,000 plus superannuation is not less than the terms and conditions of the equivalent Australian citizen or permanent resident performing equivalent work at the same location.

6. However for the following reasons the Tribunal is not satisfied that the nominee will be provided the terms and conditions of the employment contract, that is, it is not satisfied the nominee will be paid an annual base rate of pay of $54,000 plus 9.5% superannuation.

7. When the Tribunal first asked the applicant about the method of payment of wages, he indicated it was by bank transfer. When the Tribunal asked to see bank statements verifying this, he claimed that he sometimes paid his staff by cash, and that he sometimes paid the nominee, who is currently working in the nominated position as a Subclass 457 visa holder, cash because there were not enough funds in the bank account. The Tribunal explained that this might raise concerns about whether the business has the financial capacity to provide the terms and conditions set out in the employment contract.  The Tribunal asked that the applicant provide the business’ bank statements from 1 January 2017 to date, the four BAS from the ATO portal for the 2017 calendar year, the nominee’s ATO Notices of Assessment for the 2016 and 2017 financial years, and evidence the nominee has been paid superannuation in accordance with the law. The applicant agreed to provide these documents to the Tribunal.

8. The applicant has not provided bank statements for the period sought. He has provided bank statements for the period July 2014 to December 2014 and October 2015 to June 2016. The Tribunal has considered these documents but it is not satisfied they provide evidence about the business’ current capacity to provide the nominee with the terms and conditions of the employment contract.  The Tribunal has considered the content of these bank statements and while the transactions are reflective of a café business, in the most recent statements (December 2015 to June 2016) there do not appear to be regular transactions relating to payment of wages or salary equivalent to an annual rate of pay of $54,000.

1. The applicant provided BAS for the periods January 2016 to March 2016, July 2016 to September 2016 and October 2016 to December 2016.  These are not the BAS sought by the Tribunal. The Tribunal is not satisfied these BAS are sufficiently up to date to reflect the business’ current performance and financial circumstances.  It asked the applicant at the hearing about the business’ current turnover and he could give the Tribunal no indication.  The Tribunal has considered the BAS provided but it does not assist the Tribunal to assess whether the business currently has the financial capacity to pay the nominee an annual base rate of pay of $54,000. The Tribunal is concerned that the business’ current turnover may not be sufficient to pay the nominee in accordance with the terms and conditions set out in the contract.

2. The Tribunal asked that the applicant provide the nominee’s Notices of Assessment for the 2016 and 2017 financial years. The Tribunal explained that the 2017 Notice of Assessment is useful for the looking at whether the business has been able to pay the nominee in accordance with the employment contract signed in June 2016. The applicant did not provide these documents, or any explanation as to why they have not been provided. The Tribunal understands that these documents are not those of the applicant, but the nominee (who is his brother) but the applicant has not stated that the nominee has refused to provide them. However the applicant has provided the nominee’s PAYG payment summary for the 2017 financial year, issued by the applicant on 14 July 2017, and it records that the nominee’s gross payments were only $41,538.  On the basis of this information the Tribunal is not satisfied the applicant has been paying the nominee the annual base rate of pay provided for in the employment contract.  Also there is no verifiable evidence, for example, from a superannuation fund, that the applicant has been paying the nominee’s superannuation in accordance with the legislative requirements.

3. The Tribunal has taken into account the applicant’s evidence that he has been paying the wages by cash, having given the money to his accountant however this does not overcome the concern raised by the nominee’s 2017 financial year PAYG payment summary indicating he has been paid over $10,000 less that the employment contract provides. It has also taken into account his evidence that the nominee has use of the business car however the Tribunal is not satisfied there is evidence to demonstrate that his access to the business car is equivalent to the shortfall in his gross payments of over $10,000.

4. Having considered all of the material before it, the Tribunal has serious concerns that the applicant has not been paying the nominee the base salary and superannuation set out in the employment contract of June 2016 on which the business seeks to rely for the purposes of meeting r.2.72(10)(c). This has raised serious doubts for the Tribunal that the nominee will be provided the terms and conditions of employment set out in that contract. Having considered all of the information before it, the Tribunal is not satisfied the nominee will be paid in accordance with the employment contract of June 2016 in the foreseeable future. Accordingly the Tribunal is not satisfied the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to Australian citizen or permanent resident performing equivalent work at the same location. Therefore r.2.72(10)(c) is not met.

5. For the reasons given above, 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

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

Denise Connolly
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.