CLEANING WIZARD AUSTRALIA PTY LTD (Migration) - [2017] AATA 545

CLEANING WIZARD AUSTRALIA PTY LTD (Migration) [2017] AATA 545 (12 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Cleaning Wizard Australia Pty Ltd
CASE NUMBER:  1421013
DIBP REFERENCE(S):  BCC2014/2449889
MEMBER:Louie Hawas
DATE:12 April 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 12 April 2017 at 1:37pm
CATCHWORDS
Migration – Nomination – Contract administrator – Genuine position – Business of sufficient scale – Corresponds to ANSZCO description
LEGISLATION
Migration Act 1958, s 140GB

Migration Regulations 1994, r 1.13A, r 1.13B, r 2.72, r 2.73, r 2.57, IMMI 09/11, IMMI 13/137
CASES

Cargo First Pty Ltd v MIBP [2015] FCCA 2091
Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30
Nguyen & Vi Publishers Pty Ltd v Minister for Immigration & Anor and Nguyen v Minister for Immigration & Anor [2013] FCCA 1697

STATEMENT OF DECISION AND REASONS
Introduction

Cleaning Wizard Australia Pty Ltd (Cleaning Wizard) operates a national commercial cleaning business with operations in Victoria, New South Wales, Queensland, and South Australia. Nishan Amarasinghe is Cleaning Wizard’s sole director and shareholder. Her husband Don Amarasinghe (Don) is Cleaning Wizard’s general manager. He makes all the company decisions and effectively operates its business. In substance, he is Cleaning Wizard’s controlling mind. Although registered as a director, Nishani does not have an active role in operating Cleaning Wizard’s business.
Cleaning Wizard has six full time employees (as well as Don as the general manager), and one part time employee. It has six franchises on issue to which franchisees it refers cleaning work that it has contracted to perform. Otherwise, it performs its contracted cleaning work by sub-contracting the work to the between 40 and 50 cleaning sub-contractors nationwide with whom it ordinarily deals. It has one employed cleaner in New South Wales. Insofar as it performs cleaning work directly, it performs the work through that employee. The majority of its contracted cleaning work is performed by sub-contractors.
Since 2014, Cleaning Wizard has employed the nominee Nuwan Anuradha Arachchillage (Nuwan) in a position it says answers the description of a contract administrator. On 26 September 2014, it applied to nominate Nuwan for a Subclass 457 visa. Contract administrator (ANZSCO 511111) was the position for which it sought approval.
A nomination of an occupation for a 457 visa is made under s.140GB of the Migration Act 1958 (Act) and r.2.73 of the Migration Regulations 1994 (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 of the Act.
On 9 December 2014, a delegate of the Minister for Immigration refused to approve Cleaning Wizard’s nomination under s.140GB of the Act and r.2.72 of the Regulations. The delegate decided not to approve the nomination because he was not satisfied that the position associated with the nominated occupation was genuine. The delegate found that r. 2.72(1)(f) was not satisfied.
On 22 December 2014, Cleaning Wizard applied to this Tribunal for a review of the delegate’s decision.
The review came before the Tribunal for hearing on 22 September 2016. Don appeared at the hearing to give evidence and present arguments on Cleaning Wizard’s behalf. The Tribunal also received oral evidence from Nuwan.
Cleaning Wizard was represented in the review by its registered migration agent. The representative attended the Tribunal hearing.
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
In this review, the Tribunal must decide whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The nomination must comply with the prescribed process
Regulation 2.72(3) requires the applicant to have made the nomination in accordance with the process set out in r.2.73.
Regulation 2.73 requires:
(a)The person is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a);
(b)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: r.2.73(1A)(b);
(c)The nomination was made using the approved form and fee: r.2.73(2), (3), (5) & (9);
(d)The applicant has identified the nominee in the nomination: r.2.73 (4A) and r.2.72(5); and
(e)The nomination includes the location at which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO code if the applicant is a standard business sponsor, or the name of the occupation in the work agreement if applicant is a party to the work agreement: r.2.73 (4A).
The original nomination application is contained in the department’s file, which was given to the Tribunal in this review. An examination of that application reveals that each of the requirements set out in the preceding paragraph have been satisfied.
The requirements of r.2.72(3) have been met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires the person making a nomination to be either a standard business sponsor or a party to a work agreement other than a Minister.
Cleaning Wizard is an approved standard business sponsor. Its approval is to expire on 24 April 2017. It has applied to renew that approval. As at the time of the hearing, and the time of this decision, Cleaning Wizard was an approved standard business sponsor.
The requirements of r.2.72(4) have been met.
Identification of the nominee
Regulation 2.72(5) requires the applicant to identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The nomination application identifies Nuwan Anuradha Piyasena Jayasinghe Arachchillage as the person who will work in the nominated occupation.
The requirements of r.2.72(5) have been met.
Requirements for existing Subclass 457 visa holders
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.
Nuwan as the proposed nominee does not hold a 457 visa.
The requirements of r 2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide, amongst other things, the name and occupation and the corresponding 6-digit ANZSCO code if there is one. The nomination application names the occupation – contract administrator – but does not specify the ANZSCO code. But the code can be identified from the job title as ANZSCO 511111. That code was confirmed during the hearing, and the written submissions Cleaning Wizard’s representative tendered to the Tribunal on its behalf confirm the ANZSCO code.
Regulation 2.72(8A) also requires the applicant to provide the location at which the nominated occupation will be carried out. The nomination application gives the location.
The requirements of r.2.72(8A) have been met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. The Tribunal does not have evidence before it of any relevant adverse information.
The requirements of r.2.72(9) have been met.
Specified occupation
Subclause 2.72(10)(aa), as it applies to this case, requires the nominated occupation and its 6-digit code to correspond with an occupation and 6-digit code specified in legislative instrument IMMI 16/059, being the instrument in force at the time of this decision. The position of ‘contract administrator’ is specified in IMMI 16/059 as ANZSCO code 511111.
But corresponding job titles and codes on their own are not sufficient to satisfy the requirements of r. 2.72(10)(aa). In Nguyen & Vi Publishers Pty Ltd v Minister for Immigration & Anor and Nguyen v Minister for Immigration & Anor[1], the Federal Circuit Court found that in considering whether an applicant had satisfied the requirements of the clause, the Tribunal (or decision maker) had to determine whether the job nominated by the applicant corresponded to the job described in ANZSCO. That required the Tribunal to examine the proposed duties of the nominated employee and determine whether those duties corresponded with the ANZSCO description of the job.
[1] [2013] FCCA 1697 at [37] and [38] per Judge Burchardt.
In Cargo First Pty Ltd v MIBP[2] the Federal Circuit Court described a similar approach to determining whether the requirements of clause 2.72(10)(f) had been met: whether the position associated with the nominate occupation is genuine. The Court described an approach that required the Tribunal to be satisfied that the position exists. That entails a qualitative analysis of the position to determine whether it is really what it purports to be, and not simply whether the duties relevant to the position include the majority of those referred to in ANZSCO in any particular case. The approach to determining whether the requirements of r. 2.72(10)(aa) and r. 2.72(10)(f) have been met in any given case will usually involve similar factual inquiries and findings. In many cases – not all as each case must be determined on its own facts – satisfying one will necessarily mean that the other is satisfied as well.
[2] [2015] FCCA 2091 at [30] per Judge Smith. The decision at first instance was upheld on appeal in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30. The construction of r. 2.72(10)(f) at first instance was endorsed at [36].
In this case, the analysis under r. 2.72(10)(aa) and r. 2.72(10)(f) are similar and lead to the same result.
For the reasons set out in paragraphs 50 to 64 below, the Tribunal finds that the requirements of r.2.72(10)(aa) have been met.
Terms and conditions of employment
Regulation 2.72(10)(c) requires the terms and conditions of employment of the nominee to 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.
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.
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 09/11: r.2.72(10AA). This instrument specifies websites such as Job Outlook[3] and the Australian Bureau of statistics website[4], although it also includes relevant remuneration surveys.
[3] >
The contract of employment Cleaning Wizard submitted in this review provided that Cleaning Wizard would pay Nuwan a salary of $55,000 (before tax) per year plus 9.5% superannuation for a 38 hour working week. The employment contract also provided for 20 days annual leave, 10 days carer’s leave per annum, paternity leave, compassionate leave, sick leave, long service leave, and payment in lieu of notice of up to four weeks on termination.
During the hearing, Don stated that Cleaning Wizard also paid Nuwan a meal allowance and provided him with a company phone and company car as part of his salary package. He stated that Nuwan’s total salary package was worth between $75,000 and $80,000 per annum. Don also stated that Cleaning Wizard’s business development manager, whose employment tasks crossed with some of Nuwan’s as the contract administrator, was paid an identical salary to Nuwan. The business development manager also had a company phone and company car. The business development manager is an Australian citizen. Cleaning Wizard submitted a bundle of pay slips, which revealed that it paid Nuwan a base salary of $1,057.69 per week (which equates to a fraction under $55,000 per annum). The pay slips also record Nuwan’s holiday pay and sick leave entitlements.
According to Job Outlook (as at the date of this decision), a contract programme and project administrator in Australia earns an average of $1,387 per week or $72,000 per annum excluding superannuation and before tax. PayScale’s Australian index[5] provides that a contract administrator earns between about $44,423 and $98,046 per annum, with the average earnings being $61,351 per annum (all excluding superannuation and tax). Cleaning Wizard submitted to the Tribunal salary market research for the position of contract administrator, which included advertised positions for a contract administrator offering salaries ranging between $55,000 and $70,000 per annum.
[5] >
On the evidence before it, the Tribunal considers that Cleaning Wizard proposes to pay, and is paying, Nuwan a salary commensurate with those it pays to other employees who are Australian Citizens such as the business development manager. Cleaning Wizard otherwise proposes to employ, and does employ, Nuwan on terms and conditions that are no less favourable than the terms and conditions upon which it employs people discharging functions analogous to those of Nuwan (such as the business development manager).
If the Tribunal is wrong on that matter, and reference to salary data is necessary, the result is the same. On the evidence before it, the Tribunal considers that the base salary Cleaning Wizard is paying Nuwan is slightly under the average total salary for a contract administrator in Australia, which is probably over $60,000 and closer to $70,000 per annum (excluding taxation and superannuation). But when the other constituents of Nuwan’s salary such as the company car and phone are taken into account, Nuwan’s salary is probably within the average range of salary for a contract administrator. If it is below the average, the difference is negligible.
The Tribunal finds that Nuwan’s salary, and his other terms and conditions of employment, are 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.
The requirements of r.2.72(10)(c) have been met.
Base rate of pay
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.
The ‘base rate of pay’ means the rate payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Here, Nuwan’s base rate of pay is $55,000 per annum. That is higher than the rate specified in TSMIT.
The requirements of r.2.72(10)(cc) have been met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
(a)The tasks of the position include a significant majority of the tasks of a contract administrator as described in ANZSCO;
(b)If the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant; and
(c)The qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO.
Cleaning Wizard has given the Tribunal sufficient information to make out those matters, and it has certified them.
The requirements of r.2.72(10)(e) have been met.
Position must be genuine
Regulation 2.72(10)(f) requires the position associated with the nominated occupation to be genuine.
In his notice of decision dated 9 December 2014, the delegate stated that he was not satisfied that the position associated with the nominated occupation was genuine, and that r. 2.72(10)(f) had not been satisfied, because:
(a)The statement submitted by Cleaning Wizard in support of the application focused on Nuwan overseeing contractor performance but did not make mention of a substantial number of other duties listed on the job description (such as quality control, franchise management, and training staff and sub-contractors);
(b)The applicant had not demonstrated the need for a contract administrator; and
(c)A contract administrator is not necessary to Cleaning Wizard’s operations.
Although the Tribunal is not bound by the description of a contract administrator in ANZSCO, and it can have regard to other references for that job description, ANZSCO is the primary reference point for determining whether Nuwan’s job with Cleaning Wizard is genuinely what it purports to be – a contract administrator.[6]
[6] See the test set out in Cargo First as set out in paragraph 30 above.
ANZSCO provides that a contract administrator ordinarily ‘prepares, interprets, maintains, reviews, and negotiates variations to contracts on behalf of the organisation.’
Moving from that general description, ANZSCO then provides that the specific tasks include:
(a)Developing, reviewing and negotiating variations to contracts, programs, projects and services;
(b)Responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected;
(c)Managing paperwork associated with contracts, programs, projects and services provided;
(d)Working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met;
(e)Advising senior management on matters requiring attention and implementing their decisions;
(f)Overseeing work by contractors and reporting on variations to work orders;
(g)Preparing and reviewing submissions and reports concerning the organisation's activities;
(h)Collecting and analysing data associated with projects undertaken, and reporting on project outcomes; and
(i)Reviewing and arranging new office accommodation.
Before the hearing, Cleaning Wizard’s representative submitted to the Tribunal a table, which in one column set out each of the above specific tasks as described in ANZSCO, and in adjacent columns set out the tasks Nuwan performed that were said to correspond with, and satisfy, each specific ANZSCO task. The table was of limited assistance to the Tribunal. Each task described in the columns representing the tasks Nuwan performed were little more than a restatement of the tasks described in ANZSCO but expressed using different words and different sentence structure. But many of the descriptions of Nuwan’s work tasks did not describe any real world human behaviour. Many of Nuwan’s work tasks as described were little more than a collection of words conveying abstract concepts devoid of any real meaning.

Don’s evidence of Nuwan’s actual work role was more helpful. In his evidence, Don said that Nuwan’s job entailed the following:
(a)Either Don or Nuwan identified opportunities for Cleaning Wizard to tender for cleaning contracts;
(b)Once a lead was identified, Nuwan would prepare a detailed tender and submit it to Don for review and approval. The tender included the cleaning specifications the potential client required and a breakdown of the price Cleaning Wizard would offer;
(c)Nuwan would attend all meetings with the potential client to explain the services Cleaning Wizard would offer;
(d)If Cleaning Wizard was the successful tendering party, Nuwan would prepare the contract and complete the associated documentation. In completing that task, Nuwan would not draw a contract from scratch. Ordinarily, the client would give Nuwan its preferred form of contract. Nuwan would then draw the job specifications in the contract (such as areas to be cleaned and standard of cleaning to be achieved) and include the price details. Nuwan would then submit the contract to Don for final sign off;
(e)Nuwan would then attend to finalising the contract with the client and would arrange for execution;
(f)Nuwan’s interface with a particular contract did not end once it was executed. After a particular contract was locked-in, Nuwan would arrange for the contracted work to be completed by either instructing Cleaning Wizard’s employed cleaner to complete the work, referring the work to one of Cleaning Wizard’s franchisees and giving the necessary instructions, or sub-contracting the work to one of Cleaning Wizard’s preferred cleaning sub-contractors;
(g)Cleaning Wizard sub-contracted most of its cleaning work. When it sub-contracts work, Nuwan instructs the sub-contractor to be retained on the necessary cleaning specification, and then negotiates the price with the sub-contractor. Once Don has approved the sub-contract price, Nuwan prepares and finalises the sub-contract. He uses Cleaning Wizard’s standard sub-contract. He completes the cleaning specifications and the price details and arranges for it to be signed and finalised;
(h)In the event of a client complaint about cleaning work done by a sub-contractor, Nuwan will attend to the complaint and resolve the issue with the client and the sub-contractor. Often that involved clarifying instructions to the sub-contractor and sometimes retaining a new sub-contractor;
(i)Often a client or a sub-contractor will look to varying the contract price for the cleaning or the cleaning specifications. Also, a client will sometimes ask Cleaning Wizard to perform work outside the scope of work in the existing contract. In either of those events, Nuwan will negotiate the varied price, cleaning specifications or price for additional work. Once negotiated and Don has approved the variation, Nuwan will finalise the varied contract or sub-contract; and
(j)Cleaning Wizard also offers facility management services. Nuwan prepares tenders for facility management services, prepares and finalises the contracts and sub-contracts, attends to variations, and resolves complaints about the contracted services in much the same way as for the cleaning contracts.
Nuwan’s evidence about his role was consistent with that of Don. Further, Cleaning Wizard submitted to the Tribunal examples of tenders that Nuwan had prepared, contracts he had prepared, and sub-contracts he had prepared.
As explained to Cleaning Wizard at the hearing, the Tribunal initially had some reservations about whether Nuwan discharged the functions of a contract administrator within the meaning in ANZSCO. Nuwan’s exposure to contracts as described in the evidence focused largely (but not exclusively) on fixing and expressing a price (both on the contract and sub-contract side), and varying any price later. The Tribunal was concerned that Nuwan’s interface with contracts was limited in scope, and that it might not satisfy the ANZSCO description because that contemplated an exposure to contracts that was wider in scope.
But on reflection, ANZSCO provides a description or guide to what a particular job entails. Whether that job description is satisfied will depend on the nuances of each case. In any particular case, a regular exposure to contracts and their administration that is narrow in scope – such as Nuwan’s role –is capable of satisfying the ANZSCO description. The ANZSCO description of a contract administrator is not necessarily limited to administration roles that entail a broad scope of contract exposure. If that were the case, the administration of cleaning contracts, which focus on price and cleaning specifications, would rarely satisfy the ANZSCO description for a contract administrator.
The Tribunal is satisfied that when Nuwan’s actual work tasks with Cleaning Wizard are compared to the ANZSCO description of a contract administrator, the functions Nuwan discharges with Cleaning Wizard are substantially those of a contract administrator as ANZSCO describes that job.
On the generic description set out in paragraph 53 above, in the context of Cleaning Wizard’s operations which focus on cleaning specifications and price, Nuwan ‘prepares’ contracts, ‘maintains’ them, and ‘negotiates variations’ to them.
On the specific tasks described in ANZSCO as set out in paragraph 54 above, Nuwan:
(a)‘develops and reviews’ contracts, and negotiates variations’ to them;
(b)‘responds to enquiries and resolves problems concerning contracts’;
(c)‘manages paperwork associated with contracts, programs, projects, and services provided’;
(d)‘oversees work by contractors; and
(e)‘prepares and reviews submissions’ in the form of tenders concerning Cleaning Wizard’s activities.
The Tribunal is satisfied that Cleaning Wizard is of a sufficient scale to justify a full time contract administrator. According to Cleaning Wizard’s profit and loss statements for the year ended 30 June 2015 (submitted with its financial statements), the company turned over $2,276,582.56 in FY 2014, and $2,388,246.56 in FY 2015. It’s organisational chart reveals that it has six full time employees (as well as Don as the general manager), and one part time employee. It manages six franchisees and between 40 and 50 sub-contractors nationally. Its entire business, from securing clients to completing the contracted work, depends on the effective completion of contracts and sub-contracts, and ongoing management of their performance. A full time contract administrator in such a business is not an obvious construct or anomaly.
For those reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(f) have been met. The Tribunal also notes that the documentary evidence before it in support of the review was more comprehensive than that apparently before the delegate. The oral evidence supplemented the documents. That explains the different conclusion on this point.
Employment under contract
Regulation 2.72(10)(h) requires the applicant to engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister.
Cleaning Wizard gave a copy of Nuwan’s employment contract to the Tribunal.
The requirements of r.2.72(10)(h) have been met.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
The ANZSCO description of a contract administrator provides that it is a skill level 2 occupation. IMMI 13/137 specifies all ANZSCO skill level 2 occupations for the purpose of s. 140GBC(4)(b) of the Act. Sections 140GBC(2)(b) and 140GBC(4)(a) of the Act combine to provide that a sponsor will be exempt from labour market testing if the nominated occupation is specified in a relevant legislative instrument. IMMI 13/137 is such a legislative instrument. The labour market testing requirements do not apply to Cleaning Wizard’s application.
Conclusion
For the reasons given above, Cleaning Wizard meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
L. Hawas
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.
(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
(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 that:
(i)     are provided; or
(ii)    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.