Emine Mullalli (Migration)

[2021] AATA 3992

Emine Mullalli (Migration) [2021] AATA 3992 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Emine Mullalli

CASE NUMBER:  1826423

HOME AFFAIRS REFERENCE(S):          BCC2017/2338805

MEMBER:Jessica Henderson

DATE:5 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 05 October 2021 at 1:57pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Solid Plasterer – genuine need for the employment – terms and conditions of employment no less favourable – possible undeclared family relationship – significant level of responsibility and oversight – 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 21 August 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 30 June 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg. 2.72(10(f) because the delegate was not satisfied that the evidence provided demonstrated that the nomination was lodged to fill a genuine skill shortage, but rather to facilitate a migration outcome for the nominee. The delegate was also not satisfied that the applicant made genuine attempts to recruit an Australian citizen into the position.

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

5. 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

6. 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

7. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

8. On 30 June 2017 the applicant submitted an application for the approval of a nomination for the position of Solid Plasterer, ANZSCO occupation code 333212, an occupation under s.140GB(1)(b): r.2.73(1A)(a). The application identified Mr Kleand Mullalli as a proposed applicant for a Subclass 457 (Temporary Work (Skilled)) visa and the person who will work in the occupation: r.2.73(1A)(b), r.2.73(4)/(4A) and r.2.72(5). The nomination was made using the approved online form and fee: r.2.73(2), (3), (5) & (9). The applicant provided the certification as to whether or not the nominated person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B). The nomination included the location at which the occupation would be carried out, as well as the other relevant certifications: r.2.73(4A).

9. The Tribunal is satisfied that the requirements of reg 2.72(3) are met.

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

10. 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.

11. The Tribunal has been provided with a letter dated 13 April 2021 showing that the applicant’s approval as a standard business sponsor is valid until 13 April 2026.  That letter did not refer to the ABN of the applicant and referred to the applicant as ‘Emine Mullalli’.

12. The submissions prepared by the applicant’s agent on 15 April 2021 state that “we would like to put into your attention that the actual name of the Applicant as per the records of the Department of Home Affairs is Emine Mullalli ATF MULLALLI FAMILY TRUST.”

13. The Tribunal requested that the Department confirm the ABN of the approved standard business sponsor.  The Department provided the Tribunal to a copy of the 457 Standard Business Sponsorship Record of Responses, showing ABN 90 806 420 861. 

14. The Tribunal has been provided with an Australian Business Register record for ABN 90 806 420 861, entity name ‘The trustee for MULLALLI FAMILY TRUST’, a discretionary trading trust registered for GST since 25 July 2008.

15. The Tribunal is satisfied that the applicant is the entity for which standard business sponsorship has been approved.

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

    Identification of the nominee

17. 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.

18. The nomination identifies Kleand Mullalli as the nominee. The requirements of reg 2.72(5) are therefore met.

    Requirements for existing Subclass 457 visa holders

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

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

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

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

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

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

    Information about the nominated occupation

21. 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 relevant 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.

22. The nomination includes ANZSCO code 333212 (Solid Plasterer) for the nominated occupation.  The application specifies that the nominee will be employed at 20 Eaton Street, Morley.  The Tribunal accepts that this is sufficient information to address the location or locations at which the nominated occupation is to be carried out, given that the actual worksites are likely to be numerous and not capable of identification in advance of specific contracts.

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

    Certification relating to conduct under s 245AR(1)

24. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.

25. The nomination contains a certification that the applicant has not engaged in such conduct.

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

    No adverse information known to Immigration

27. 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.

28. No adverse information is contained on the department file provided to the Tribunal and there is no evidence of adverse information before the Tribunal.

29. For these reasons the requirements of reg 2.72(9) are met.

    Specified occupation

30. 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).

31. The nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in IMMI 17/060, being Solid Plasterer ANZSCO 333212. There are no applicability conditions. For these reasons the requirements of reg 2.72(10)(aa) are met.

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

    Terms and conditions of employment

33. 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).

34. 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.

35. Although the original nomination application stated that there were no Australian employees in the workplace performing equivalent work to the nominated person, the Tribunal has subsequently been provided with a list of what appear to be equivalent employees for the applicant, showing their position, employment status and citizenship/residency.  In addition to a contractor who is employed on a working holiday visa, the applicant has two permanent residents that are employed as contractors, and a full-time employee who is an Australian citizen.  The latter is a Senior Solid Plasterer, the others are Plasterers. No evidence of their hourly rates, or annual salary was provided to the Tribunal.

36. The nominee’s contract of employment shows that he is earning a base annual salary of $97,000 per annum, plus superannuation of 9.5%.  The terms and conditions of employment are referable to the National Employment Standard.

37. The relevant Fair Work Award is the Building and Construction General On-Site Award, and the relevant level for a plasterer is Level 3. The nominee is required to supervise plastering contractors and is required to work 38-hour weeks.  The Tribunal has had regard to the Fair Work Check Pay website and notes that the minimum weekly wage proscribed under the Building and Construction General On-Site Award is $1,017.79; an annual minimum wage of $52,925.08. 

38. The Tribunal accepts that the Fair Work Award proscribes minimum pay rates and that industry/market rates can be significantly higher. The Tribunal has been provided with copies of 2021 advertisements appearing on “indeed” showing a range of salaries offered from $60,000 - $100,000. 

39. The Tribunal accepts that the salary of $97,000 per year is not less favourable than the salary that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location.

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

    Base rate of pay

41. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028, being $53,900.

42. The Tribunal is satisfied that the range of market salaries for a Solid Plasterer reflected in the evidence provided by the applicant is an accurate reflection of the market rate, and that an Australian citizen or permanent resident would be paid a base rate above $53,900.

43. The requirements of reg 2.72(10)(cc) are therefore met.

    Certification under reg 2.72(10)(e)

44. 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 a relevant instrument;

    ·if the applicant lawfully operates a business in Australia, as here, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in a relevant instrument; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.

45. The nomination application contained the relevant certifications. For these reasons the requirements of reg 2.72(10)(e) are met.

    Position must be genuine

46. 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.

47. The nominated position is that of Solid Plasterer.  The main business activity of the applicant is declared in the tax returns to be “plasterers”.

48. The Tribunal has been provided with photographs and sketches showing the work done by the applicant, and the Tribunal notes that it appears to be genuine plastering work of a reasonably complex scale. The nominee is a qualified plasterer.

49. The Tribunal has been provided with a Compilation Report to the Trustee compiled by Infinity Accounting and Taxation Services dated 26 April 2021.  The Compilation Report contains a profit and loss statement which shows total income for the 2020 financial year in the amount of $498,333, wages in the amount of $97,000, and subcontracting fees in the amount of $162,131.  The only other significant item of expenditure is materials and supplies in the amount of $113,117.  The applicant can reasonably support a full time plasterer on the nominee’s salary, and it appears proportionate to the overall expenditure that the applicant do so.

50. The Tribunal accepts the proposition advanced in the applicant’s submissions that it is efficient and prudent to employ a full-time plasterer, given the dependency of its business reputation on quality and completion times.

51. The Tribunal notes the concern of the delegate that there might be an undeclared family relationship between the applicant and the nominee.  The following observations are apt.

52. The sponsorship approval letter dated 13 April 2021 states that the name of the applicant is “Emine Mullalli”.  Emine Mullalli is a registered sole trader active from 1 February 2015 and not registered for GST, with ABN 39 139 310 296. 

53. The nomination application was made by “Emine Mullalli atf Mullalli Family”.  That does not prima facie appear to be the same legal entity as Emine Mullalli, the sole trader. 

54. The Tribunal has been provided with an Australian Business Register record for ABN 90 806 420 861, entity name ‘The trustee for MULLALLI FAMILY TRUST’, a discretionary trading trust registered for GST since 25 July 2008.

55. The submissions prepared by the applicant’s agent on 15 April 2021 state that “we would like to put into your attention that the actual name of the Applicant as per the records of the Department of Home Affairs is Emine Mullalli ATF MULLALLI FAMILY TRUST.”

56. Importantly, the application for the standard business sponsorship pursuant to which the applicant’s standard business sponsorship was granted stated that the sponsor’s details included ABN 90 806 420 861. In other words, the approved sponsor is not Emine Mullalli, registered sole trader, but Emine Mullalli atf Mullalli Family Trust.

57. Emine Mullalli is therefore correctly described as the applicant in her capacity as Trustee for the Mullalli Family Trust, and not in her personal capacity as a sole trader.  That is significant in the context of the delegate’s concern that the employment of the nominee was not an arms-length contract because the nominee appeared to be a relative of the applicant.  The tax returns for the applicant demonstrate that the nominee is not a beneficiary of the Trust.  The duty owed by the Trustee to the beneficiaries of the Trust prevent her employing her relatives except where she reasonably concludes that it is in the best interest of the Trust to do so.  It is not comparable to an individual or private business owner employing a relative to secure a visa outcome for personal reasons. 

58. The delegate’s concern that there was a lack of forthrightness on the part of the applicant because a family relationship between the applicant (ie the Trustee of the Mullali Family Trust) and the nominee was not declared has been adequately addressed by the applicant.  The applicant accepts that she is a relative of the nominee, and says that there was no intention to deceive; there was no option on the online application form for declaring a familial relationship and no enquiry about the shared surname was made by any interested person.  The Tribunal finds that explanation to be a reasonable one.

59. The Tribunal also notes that concerns of the delegate that the quantum of salary offered to the nominee might be an attempt to evade the English language requirements of the nominee’s visa application. 

60. The nominee’s English capabilities is an issue for the visa application, not the nomination application.  It could only be relevant in respect of the nomination application as part of a finding that the quantum of salary had been artificially inflated, which might in some circumstances comprise evidence that the position is not genuine.  The question does not arise in this instance, for the reasons that follow.

1. The Tribunal finds that the nominee’s salary is at the high end of the salaries advertised for comparable roles.  However, there is a significant level of responsibility and oversight associated with the nominee’s job description.  The position description includes supervising the plastering team and “completing all projects within contract time frame and to standard.” A significant level of flexibility is required of the nominee in his contract of employment, including the averaging of hours over a four week period (potentially requiring very long hours across any given working week).  Clause 2.5 provides that the “Employer and Employee agree that average hours over a longer period than 4 weeks can also occur.”

2. The Tribunal is satisfied that there is justification for the amount of the nominee’s salary.  The Tribunal finds that the position is genuine, and correctly described as a Solid Plasterer.

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

   Employment under contract

4. 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 relevant instrument.

5. The Tribunal accepts that the contract of employment between Emine Mullalli ATF Mullalli Family Trust T/A Mullalli Plastering and the nominee dated 30 June 2017 is between the applicant and the nominee. The requirements of reg 2.72(10)(h) are met.

   Work agreements

6. 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.

7. The applicant is not a party to a work agreement and the requirements of regs 2.72(11) and (12) are not applicable.

   Labour Market Testing

8. 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.

9. 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, being 12 months. 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.

10. 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.

11. The labour market testing condition applies to the applicant, being not inconsistent with an international trade obligation nor subject to any exemption.

12. The applicant has provided a copy of an advert titled “Mullali Plastering Requires a Full-Time Plasterer Urgently, Perth”.  It does not show a date.  The hosting site does not appear on it.  It is slim evidence of labour market testing.

13. The submissions filed by the applicant’s agent on 15 April 2021 states that “[a]s a result of the increase of the demand for the services of Solid Plasterers in Australia, particularly in WA, experienced plasterers are either employed mostly by large civil construction companies; migrate to other States in search for higher-paying jobs; or they prefer becoming Sole Traders and retain several employments for themselves.”  The Tribunal accepts that this is drawn from the applicant’s observations which themselves comprise a component of labour market testing and finds that those observations were drawn over a period of time which included the twelve months prescribed by IMMI 13/136.

14. Such anecdotal evidence is consistent with the Tribunal’s review of online resources, accessed on 1 September 2021.  Solid Plasterer appears on the current Western Australian Skilled Migration Occupation List in Schedule 2. Solid Plasterer appears in the 2021 Skills Priority List produced by the National Skills Commission as an occupation in national shortage, with moderate future demand and is marked “S” for WA, signifying that there is a shortage in both regional and metropolitan areas.

15. The Tribunal accepts that the labour market testing requirements in s 140GBA are met.

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

    DECISION

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

    Jessica Henderson
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.