Dave Cashman Pty Ltd (Migration)

[2021] AATA 4190

Dave Cashman Pty Ltd (Migration) [2021] AATA 4190 (13 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dave Cashman Pty Ltd

CASE NUMBER:  1832200

HOME AFFAIRS REFERENCE(S):          BCC2017/4917786

MEMBER:Michelle East

DATE:13 October 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 13 October 2021 at 2:50pm

CATCHWORDS

MIGRATION – approval of a nomination – occupation of Taxation Accountant - written contract of employment – genuine position –terms and conditions of employment no less favourable – exemption from labour market testing – decision under review set aside      

LEGISLATION

Fair Work Act 2009
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 October 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 22 December 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 r.2.72(10)(h)(i) because the delegate was not satisfied that the applicant was engaging the nominee under a written contract of employment.

4. The Tribunal was in receipt of substantially more information than was available to the delegate and was able to make a decision on the papers without the need for a hearing.

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 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. On the information available in the Department’s file, the Tribunal is satisfied that the applicant identified Phat Thuan Dinh Ngo NGUYEN, the proposed applicant for a subclass 457 visa, who will work in the nominated occupation of Taxation Accountant (ANZSCO 221113).  The Tribunal is also satisfied that the nomination was made using the approved form, which included the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B).  The Tribunal is satisfied that the nomination includes the location at which the occupation will be carried out, being, Bibra Lake, Western Australia.

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 applicant has been approved as a standard business sponsor for the period 11 May 2018 to 11 May 2023.  The Tribunal is satisfied the applicant is a standard business sponsor.

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 identifies the proposed applicant for the visa, Phat Thuan Dinh Ngo NGUYEN, who will work in the nominated position.

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.

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

    Information about the nominated occupation

19. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

    ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

    ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

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

20. The applicant clearly identified in the application form that it had nominated a Taxation Accountant to work in the business in Bibra Lake.  The relevant ANZSCO Code 221113 is in the application.

21. For these reasons the requirements of reg 2.72(8B) are met.

    No adverse information known to Immigration

22. 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.

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

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

    Specified occupation

25. 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).

26. The applicant is a Standard Business Sponsor.  It nominated the position of Taxation Accountant which is an occupation specified in IMMI 17/060.  The position is subject to inapplicability condition 6 which is ‘the position is a clerical, bookkeeper or accounting clerk position’.

27. The Tribunal has been provided with a job description and is well satisfied that the position is not that of a clerical, bookkeeper or accounting clerk.  Accordingly, the Tribunal is satisfied that inapplicability condition number 6 does not apply.

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

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

    Terms and conditions of employment

30. 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).

31. 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.

32. 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(10)(AA).

33. 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).

34. The nominee’s current annual salary is $69,060 inclusive of superannuation.  At the time of the application it was $54,795 plus superannuation.  As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements.  Therefore, the Tribunal must be satisfied 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.

35. The organizational chart provided demonstrates that there is another taxation accountant employed by the applicant and further information in relation to that employee indicates her employment conditions are comparable to those of the proposed nominee.  What is not clear however is whether the other employee is an Australian citizen or permanent resident.

36. On the assumption that she isn’t, the Tribunal must determine the terms and conditions that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.

37. IMMI 09/113 sets out that if there is a fair work instrument, state industrial instrument or transitional instrument that applies or would apply to Australian citizens or Australian 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.

38. The Tribunal accepts that there is no applicable fair work or industrial instruments that would apply to the position of Taxation Accountant, so has had regard to a range of sources to determine whether the terms of the nominee’s employment conditions are no less favourable than those that would be offered to an equivalent Australian employee, including those provided by the applicant.

39. The Tribunal is satisfied that the nominee’s salary is within the salary range of what an equivalent Australian employee would be paid.

40. The Tribunal is also satisfied that the proposed terms and conditions of employment for the nominated position are no less favourable than the earnings and terms and conditions that are provided, or would be provided to, an Australian citizen or permanent resident performing equivalent work at the same location.

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

    Base rate of pay

42. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.

43. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: reg 2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.

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

45. As the base rate of pay of the nominee’s annual earning was previously $54,795 and is now $63,654 including superannuation, the base rate of pay for the nominated position is greater than the current TSMIT of $53,900. The Tribunal therefore finds that r.2.72(10)(cc) is satisfied.

    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 or specified in the instrument;

    ·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 or, if there is no ANZSCO code, in the relevant instrument.

47. Based on the information before it, including the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made. For these reasons the requirements of r.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 in making its decision has had regard to the following factors:

    -The tasks of the position align, or at least substantially align with those of the nominated occupation as described in the ANZSCO

    -The nominated position is consistent with the nature of the applicant’s business

    -The position may have been created to secure a migration outcome for the nominee.

50. Having regard to the above factors, the Tribunal has considered the genuineness of the position.

51. The ANZSCO description of Accountant is as follows:

    UNIT GROUP 2211 ACCOUNTANTS 

    
    ACCOUNTANTS provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance.

    Indicative Skill Level:
    In Australia and New Zealand: 

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Registration or licensing may be required.
    Tasks Include: 

    oassisting in formulating budgetary and accounting policies

    opreparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies

    oconducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation

    oexamining operating costs and organisations' income and expenditure

    oproviding assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements

    oproviding financial and taxation advice on business structures, plans and operations

    opreparing taxation returns for individuals and organisations

    oliaising with financial institutions and brokers to establish funds management arrangements

    ointroducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems

    omaintaining internal control systems

    omay appraise cash flow and financial risk of capital investment projects

    
    Occupations:

    221111 Accountant (General)
    221112 Management Accountant
    221113 Taxation Accountant

    
    221111 ACCOUNTANT (GENERAL)

    
    Provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements. Registration or licensing may be required for certain services such as auditing.

    Skill Level: 1 
    Specialisations: 

    Financial Analyst

    Insolvency Practitioner

    
    221112 MANAGEMENT ACCOUNTANT

    
    Alternative Titles:

    Cost Accountant
    Financial Accountant

    
    Plans, reviews and administers accounting systems and procedures, analyses the financial information needs of organisations, provides advice on financial planning and risk management, and provides management with reports to assist in decision-making. May provide insight into cost performance and support the implementation of benchmarking and improvement initiatives. Registration or licensing is required.

    Skill Level: 1

    
    221113 TAXATION ACCOUNTANT

    
    Alternative Titles:

    Taxation Agent
    Taxation Consultant

    
    Analyses, reports and provides advice on taxation issues to organisations or individuals, prepares taxation returns and reports, and handles disputes with taxation authorities. Registration or licensing may be required.

    Skill Level: 1

52. The nominee works in an accountancy practice and has recently been promoted to ‘Senior Tax Accountant’ and has achieved his CPA.  The job description provided together with the list of his responsibilities closely align with the tasks and responsibilities as outlined in the ANZSCO.

53. The Tribunal is therefore satisfied that the position associated with the nominated occupation is genuine.

54. There is no evidence suggesting that this application has been lodged to secure a migration outcome.

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

    Employment under contract

56. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the instrument.

57. The delegate refused the application on the basis that this regulation was not met.  The decision stated as follows:

    The applicant submitted a written contract but it is not a contract of employment.

    The offer of employment provided by the applicant does not stipulate who Mr Phat Nguyen will employed with.  A contract is a legally enforceable agreement between two or more parties.  The applicant has failed to show a contract between the applicant and the nominated party.  Therefore, On assessment of the information supplied by DAVE CASHMAN PTY LTD I am not satisfied that the applicant will engage the nominee only as an employee under a written contract of employment. (sic)

1. The offer of employment supplied by the applicant dated 12 December 2017 is on ‘Cashmanagement’ letterhead and is signed by David Cashman, CPA, Practice Manager.  A letter of engagement of the same date was also supplied which offers the nominee employment ‘in the position of Taxation Accountant (ANZSCO 221113) with us at Dave Cashman Pty Ltd, trading as Cashmanagement (‘the employer’).  It is clear on both documents that Dave Cashman is a director of Dave Cashman Pty Ltd.

2. The Tribunal is satisfied that the documents supplied constitute an employment contract which sets out the terms of conditions of employment and confirms the annual salary paid (recently updated by separate letter).

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

   Work agreements

4. 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.

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

   Labour Market Testing

6. 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.

7. 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.

8. 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.

9. The labour market testing condition does not apply to the applicant in this case because the nomination is subject to the occupational exemptions in the relevant instrument: s.140GBC.  For a skills and occupation exemption under s.140GBC to apply, the nominated occupation must be both specified in the relevant instrument (IMMI 13/137) and satisfy the requirements of s.140GBC(3).  The relevant instrument has specified the occupation, ‘Accountant’ at Skill Level 1.  The requirement that the nominee has a relevant associate degree, advanced diploma or diploma covered by the AQF to meet the requirements of s,140GBC(3)(a)(i) is met by the provision of his qualifications.  The Minister specified for the purpose of s.140GBC(4)(b) of the Act all occupations that are classified in the ANZSCO as Skill Level 1.

10. For these reasons, the labour market testing requirements in s.140GBA are not applicable.

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

    DECISION

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

    Michelle East
    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.