EMMARIO PTY LTD (Migration)

EMMARIO PTY LTD (Migration) [2020] AATA 5849 (14 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  EMMARIO PTY LTD
CASE NUMBER:  1808678
HOME AFFAIRS REFERENCE(S):          BCC2018/882161
MEMBER:Cathrine Burnett-Wake
DATE:14 December 2020
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 14 December 2020 at 1:23pm

CATCHWORDS
MIGRATION – approval of a nomination – limited service restaurant – nominated position and its code correspond to a specified occupation – terms and conditions of employment – genuine position – international trade obligation – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140GB, 245, 360
Migration Regulations 1994, Schedule 2, cl 457.223; 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 23 February 2018. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(10)(aa). The reason as stated in the delegate’s decision was:
At the time of my decision, there is no evidence provided by the applicant to indicate that the business is not a limited service restaurant. The applicant has not provided a menu for the business or photos of the business including the kitchen area or a seating plan.
The applicant has not provided a statement indicating whether the business provides a wait service, or if customers pay for food at their table or at the counter. The applicant has also not provided a statement regarding whether the business is primarily engaged in the provision of fast food.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
It should be noted that the Tribunal had substantially more information before it than the delegate did at the time they made their decision.
The applicant was represented in relation to the review by its registered migration agent.
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
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 r.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
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
Having reviewed the application form on the Department of Home Affairs’ (the Department) file, the Tribunal is satisfied that:
·the applicant nominated a relevant occupation under s.140GB(1)(b) being Chef (ANZSCO 351311): r.2.73(1A)(a);
·the application identified the nominee, Ms Min-Hee Lee, the proposed applicant for a Subclass 457 visa, as the person who would work in that occupation;
·the nomination was made using the approved form and fee: r.2.73(2), (3), (5) and (9);
·the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5);
·the applicant has provided the certification as to whether or not the applicant has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and
·the nomination includes the locations at which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO code, as well as the relevant certifications mentioned in r.2.72(10): r.2.73(4)/(4A).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
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.
Departmental records show that EMMARIO PTY LTD has approval as a standard business sponsor, valid until 21 June 2024. As such, the requirement of r.2.72(4) is met.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
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.
The application for nomination form submitted to the Department identifies Ms Min-Hee Lee as the visa applicant who will work in the nominated occupation. As such, this requirement is 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.
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
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.
The applicant stated in the nomination application form submitted to the Department that the nominated occupation is Chef, with the corresponding ANZSCO code of 351311.
The nomination also provides the location at which the nominated occupation is to be carried out, being an address in Nowra, New South Wales.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
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.
The application form submitted to the Department contains the necessary certification. As such, the requirement of r.2.72(8B) is 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.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied the requirements of r.2.72(9) are met.
Specified occupation
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: r.2.72(10)(b).
In determining whether the nominated occupation corresponds to an occupation in the specified instrument, the Tribunal has had regard to the skills level and tasks of the occupation as described in ANZSCO, the position description provided by the applicant the written submissions and supporting evidence.
The Tribunal notes the following submission from the representative:
We have attached Nowra Restaurant Menu and photos of the restaurant to show that it is full blown restaurant offering range of dishes and definitely not a takeaway shop. As indicated by the MENU, cooking of the wide range of dishes requires qualified CHEF and COOK and cannot be carried out by unqualified person. Also it is quite a busy restaurant and employs many staff and staff need to be managed by the CHEF and its rosters and also employment of casual and temporary casual staff can only be effectively managed by qualified CHEF who lives and work fulltime. All of above roles were conducted by Mr An and his wife Mrs Kim with their limited English but the Nominee takeover all of their responsibilities.
Directors can confidently testify that the Nowra Restaurant does not fall within caveats because it is not:
1. Position does not involve mess production;
2. Nowra Restaurant is not limited service restaurant in that, (i) it does not offer a fast food or takeaway food service; (ii) it is not a fast casual restaurant; (iii) it is not drinking establishment that offers only a limited food service; (iv) it is not limited service café, coffee shop or mall café; and finally, (v) it is not a limited service pizza restaurant.
The Tribunal has before it details regarding the operations of this restaurant, the business' employees and their roles within the business. The applicant has also provided detailed evidence about the tasks undertaken by the nominee, who currently fills the role. The Tribunal is satisfied that the tasks of the position are consistent with the tasks of the occupation of Chef. The Tribunal is also satisfied that the position is not in a factory setting or in a limited service restaurant. The Tribunal has considerably more information before it regarding the operation of the business than the Department did at the time of primary decision. This includes a detailed statement, photos, menus and other operational details about the restaurant.
Given the above, the Tribunal finds that the nominated occupation of Chef and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument and that the caveat conditions specified in the instrument do not apply in this case. For these reasons the requirements of r.2.72(10)(aa) are met.
Terms and conditions of employment
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.
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 the specified instrument: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument (currently $250,000) r.2.72(10AB).
Based on the evidence before it, the Tribunal finds that the nominee's current annual earnings consist of her base salary of $56,000 plus 9.5% superannuation as per the contract of employment. 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.
The Tribunal is satisfied from the documentary evidence provided by the applicant that there is no Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.
Having regard to IMMI 09/113, the Tribunal is satisfied that the Restaurant Industry Award 2010 includes the occupation of Chef/Cook. Under this award the adult full time weekly rate for a Cook – grade 1 is $742.30 (or approximately $38,599.60 per year), $767.80 per week for a Cook – grade 2 (or approximately $39,925.60 per year), $809.10 per week for a Cook – grade 3 (or approximately $42,072.20 per year), $859.80 for a Cook – grade 4 (or approximately $44,709.60 per year), and $882.80 for a Cook – grade 5 (or approximately $45,905.60 per year), in addition to which there are various loadings for weekend work and other overtime. It is not entirely clear to the Tribunal whether this would be applicable to the nominated position or not. The applicant did not claim to have based the nominee's salary on this, but instead used market rates. Therefore, the Tribunal considers it appropriate to have regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.
The Tribunal has consulted a range of sources of information, including: the Government's Job Outlook website (accessed December 2020) which indicates that the average weekly earnings before tax for Chefs are $1250 or $65,000 annually:
Payscale website ( ) report (accessed December 2020) provides a salary range for a Chef in Australia of $41,000 to $60,000: Kitchen Chef Hourly Pay in Australia | PayScale;
The Tribunal is satisfied from the most recent salary survey information from Job Outlook, that the salary package attached to the nominated position is within the range of salaries for the occupation.
On balance, the Tribunal is satisfied that the nominee's salary is no less favourable than those that would be offered to the relevant Australian equivalent.
The Tribunal is further satisfied that the original contract of employment provided to the Department for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).
Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.
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 (currently $53,900).
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: r.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: r.2.57. The meaning of 'earnings' is provided in r.2.57A.
Likewise, the requirement in r.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 (currently $250,000): r.2.72(10AB).
The Tribunal is satisfied from the evidence provided that the nominee's annual earnings are $56,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc), unless the Tribunal is satisfied that the annual earnings of an equivalent Australian employee to the nominee would exceed the TSMIT and it is reasonable to disregard r.2.72(10)(cc).
Based on the market salary rate information assessed in paragraphs 40 to 43 above, the Tribunal is satisfied that the Payscale salary range median figure for a Chef is just under the TSMIT.
On balance, considering the above information cumulatively, the Tribunal is satisfied that the base rate of pay of an Australian employee in an equivalent role to the nominated position would be higher than the TSMIT.
Given this finding, the Tribunal finds that r.2.72(10)(cc) is 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:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant 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.
Based on information before it, including in the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made, and for these reasons, the requirements of r.2.72(10)(e) are met.
Position must be genuine

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.
The owners of the restaurant operate 7 other restaurants in the Illawarra Region, all specialising in Japanese cuisine.
The Tribunal has before it numerous photographs of the business' premises. It has also had regard to the business' website and various online reviews about the restaurant, the quality of its food, the level of service provided and recommendations. The Tribunal has also had regard to financial reports and activity statements provided to the Department and to the Tribunal.
On the totality of the evidence, the Tribunal is satisfied that the restaurant operates 7days a week and that it requires a Chef in the kitchen during its opening hours. The Tribunal is satisfied, on the basis of the financial records, that the business has experienced a growth in its turnover over. The Tribunal is also satisfied that the restaurant generally enjoys good reviews from its patrons as indicated by feedback online.
Having regard to the nature, size and activities of the business, the tasks to be undertaken in the position and the nominee's background, the Tribunal is satisfied on the totality of the evidence that the position of Chef, as identified in the nomination, is genuine. For these reasons, the requirements of r.2.72(10)(f) are met.
Employment under contract
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.
The applicant has provided to the Tribunal a written contract which sets out the terms and conditions of employment and confirms the annual salary of $56,000, exclusive of superannuation and packaged benefits. Therefore, the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.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.
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
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.
Labour Market Testing was not required by reason of an international trade obligation.
The Korean-Australian Free Trade Agreement has been in place since 12-Dec-2014. All Korean nominees are exempt from the LMT (Labour Market Testing).
International Trade Obligations
LMT will not need to occur where it would conflict with Australia’s international trade obligations, in any of the following circumstances:
·The worker you nominate is a citizen/national of Japan or Thailand, or is a citizen/national/permanent resident of Chile, Korea or New Zealand.
The nominee is a citizen of Korea.
The Tribunal makes reference to IMMI 17/109, Determination of International Trade Obligations Relating to Labour Market Testing:
Section 6 International trade obligations with which it would be inconsistent to require labour market testing
(1) For the purposes of subsection 140GBA(1)(c) of the Act, the imposition of labour market testing would be inconsistent with Australia’s international trade obligations arising from the following international trade agreements:
…
h. the Korea-Australia Free Trade Agreement;
…
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
For the reasons given above, the applicant 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.
Cathrine Burnett-Wake
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.

[2020] AATA 5849

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Immigration

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