ESTATE AGENTS PTY LTD (Migration)

[2021] AATA 1082

ESTATE AGENTS PTY LTD (Migration) [2021] AATA 1082 (22 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ESTATE AGENTS PTY LTD

CASE NUMBER:  2001292

HOME AFFAIRS REFERENCE(S):          BCC2016/2808593

MEMBER:Bridget Cullen

DATE:22 February 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 22 February 2021 at 3.20pm

CATCHWORDS

MIGRATION – nomination of a position – Federal Circuit Court remittal – position of Customer Service Manager – genuine position – nominee managed a number of contractors – terms and conditions of employment – property management services to multiple properties – exempt 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 Immigration and Border Protection on 12 January 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 24 August 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The applicant in this case seeks to employ Ms Fathima Ayesha Rizan in the position of Customer Service Manager – ANZSCO 149212.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10(f) of the Regulations because the delegate was not satisfied that the position associated with the nomination was genuine.

5. The Tribunal, differently constituted, affirmed the application for review in relation to the nomination refusal on 4 January 2019. The Tribunal there found that the only person the nominee managed was her husband and that her duties were not commensurate with the ANZSCO tasks expected of a Customer Service Manager.

6. The applicant appealed that decision to the Federal Circuit Court of Australia. On 27 November 2019, it held the following:

   ·The Tribunal erred in finding that the r.2.72(10)(f) criteria had not been met. The distinction drawn by the Tribunal between the engagements by the applicant of independent contractors, as opposed to the employment by it of people to carry out exactly the same tasks as were performed by such contractors, was inapt and superficial. It was illogical in the extreme for the Tribunal to find that a person could only genuinely be considered a customer service manager if they managed employees, as opposed to managing what the Tribunal member referred to as a host of contractors. Such distinction, erroneously drawn by the Tribunal, was materially fundamental in its decision-making process and constituted jurisdictional error.

   ·Further, the Tribunal fell into jurisdictional error as it failed to have regard to relevant considerations, namely the fact that the nominee managed and co-ordinated a substantial number of contractors and sub-contractors on behalf of the applicant.

7. The matter was remitted to the Tribunal and the matter was constituted to a different Member for consideration. The Tribunal invited the applicant to appear before the Tribunal on 27 October 2020 to give evidence and present arguments. The applicant appeared by way of Mr Adam Loadsman, a director for the company. The hearing was heard conjointly with the application for review lodged by the nominee, Ms Fathima Rizan. Ms Rizan also attended the hearing.

8. The applicant was represented in relation to the review by its registered migration agent, Ms Lauren Blud (of Ramsden Lawyers – MARN 1798989). The representative attended the Tribunal hearing. The applicant further had an instructed barrister for the purposes of the hearing, Ms Borcsa Vass, of Alfred Lutwyche Chambers.

9. 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

10. 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

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

12. In essence these are administrative requirements, such as that the nomination has been lodged under s.140GB(1)(b) of the Act; identifying someone for a Subclass 457 visa as the person who will work in the nomination and identified the nominee in the nomination; was lodged on the approved form and correct fee was paid; that certification was provided that no conduct contravening s.245AR(1) of the Act has occurred; and that the nomination included the location at which the occupation will be carried out and the name of the occupation and/or 6 digit ANZSCO code.

13. The nomination identified Ms Rizan, a prospective 457 applicant, to the occupation of Customer Service Manager (ANZSCO 149212), to work at “Gold Coast Holidays and The Apartment Centre” in Surfers Paradise.

14. Further, the application was lodged on the approved form and the appropriate fee was paid, and certification was provided with the lodgement of the application.

15. For these reasons the requirements of r.2.72(3) are met.

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

16. 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.

17. The last approval as a standard business sponsor for the applicant was approved on 14 October 2016 for a period of five years, until 14 October 2021. There is no information before the Tribunal that the applicant has ceased being a standard business sponsor in that time.

18. For these reasons the requirements of r.2.72(4) are met.

    Identification of the nominee

19. 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.

20. The application, when lodged with the Department on 24 August 2016, identified Ms Fathima Ayesha Rizan, and has always identified Ms Rizan as the nominee for the position.

21. For these reasons the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

22. 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

23. 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.

24. The nomination when lodged n August 2016 specified that the nomination was being lodged for the position of Customer Service Manager – ANZSCO 149212; and specified that the location the nomination position would be carried out was in Surfers Paradise.

25. For these reasons the requirements of r.2.72(8A) are met.

    Certification relating to conduct under s.245AR(1)

26. 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.

27. The application when lodged in August 2016 contained certification with relation to conduct under s.245AR(1).

28. For these reasons the requirements of r.2.72(8B) are met.

    No adverse information known to Immigration

29. 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.

30. The Tribunal has not been made aware of any adverse information about the applicant or any of their associates.

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

    Specified occupation

32. 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 the relevant instrument, 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).

33. The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation and its corresponding ANZSCO code are relevantly specified in the applicable instrument.

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

35. As the nomination was not required to be supported by a specific organisation, the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

36. 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.

37. 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.

38. 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 for compliance with r.2.72(10AA).

39. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI13/028 as specified by r.2.72(10AB), being the amount of $53,900.00.

40. The applicant has produced PAYG evidence of the nominee's current salary at $65,000 per annum plus superannuation.

41. The applicant has produced the nominee's employment contract for the position, and which commenced with the applicant on or about 31 August 2018. The contract contains the usual employment terms and conditions to meet the requirements under the Fair Work Act 2009.

42. The evidence before the Tribunal is that there is no equivalent Australian citizen or Australian permanent resident performing the nominated position in the business. As such, the Applicant has determined the terms and conditions of employment and the associated base rate of pay for the nominated position that would be provided to an Australian citizen or an Australian permanent resident performing equivalent work in the person’s workplace at the same location in accordance with the method specified by the Minister in an instrument in writing, being IMMI 09/113. The Applicant has provided the Tribunal with evidence of this calculation, which the Tribunal accepts. Regulation 2.72(10AA) is therefore satisfied.

43. The Tribunal is satisfied that the nominee's earnings, which are above average, and considering the range of her duties and skills, are no less favourable than those for the relevant Australian equivalent performing equivalent work at the same location.

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

    Base rate of pay

45. 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 relevant instrument.

46. 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.

47. 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 relevant instrument: r.2.72(10AB).

48. As required under regulation 2.72(10)(cc), the base rate of pay of the nomination position, as outlined within the nomination and supporting documents, is $65,000. The Tribunal finds that this is higher than the temporary skilled migration income threshold, currently $53,900.

49. For these reasons the requirements of r.2.72(10)(cc) are met.

    Certification under r.2.72(10)(e)

50. 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 relevant instrument;

    ·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 the relevant instrument; 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.

51. The Tribunal accepts, based on the material submitted by the applicant, that it lawfully carries on a business in Australia. Each of the relevant required certifications has been made in the nomination application and the requirements of r.2.72(10)(e) are met.

    Position must be genuine

52. 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.

53. The evidence of Mr Loadsman, as well as the supporting evidence lodged in the Tribunal, supports a finding by the Tribunal that the applicant requires the position Customer Service Manager within its organisational structure.

54. The Applicant has operated a holiday accommodation business in and around Surfers Paradise on the Gold Coast since 2009. The business offers property management services to property owners and investors, and manages holiday rentals of premium standard investment apartments. Throughout its operation, the Applicant has expanded its property portfolio. At the time of hearing, the business managed 37 properties, with a total of 100 rooms, ranging from two to five-bedroom apartments.

55. The applicant submits, and the Tribunal accepts, that the prestige level of many of properties, together with consistent temporary lettings, requires a significant level of customer service management. Mr Loadsman explained that as the properties managed by the business are rented on a temporary, short-term basis, and the prices charged for the rental properties are premium, renters will not accept less than a high standard of customer service. This requires a range of customer focused tasks be addressed and managed in a timely and effective manner.

56. The applicant further explained that, in this industry, customer satisfaction is crucial to ensuring positive online reviews, which are an important marketing tool utilised by the business to ensure its success. The Tribunal has had regard to the oral evidence before it from Mr Loadsman, and to the description of tasks performed by the nominee. The Tribunal finds that these tasks align in a significant way with those outlined in the ANZSCO description for Customer Service Manager. The Tribunal notes that it has had the benefit of very detailed, professional submissions that outline the tasks performed, and annex the supporting evidence. The Tribunal makes specific reference to the submissions filed in the Tribunal on 26 October 2020 in this respect.

57. The Tribunal finds that the position of Customer Service Manager is genuine. For these reasons the requirements of r.2.72(10)(f) are met.

    Employment under contract

58. 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.

59. The Tribunal has cited an employment contract dated 31 August 2018 provided by the applicant which clearly states that they are an employee under a contractual arrangement.

60. For these reasons the requirements of r.2.72(10)(h) are met.

    Work agreements

61. 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.

1. The applicant is an approved Standard Business Sponsor and is not a party to a work agreement. As such, the requirements of r.2.72(11) and (12) are not applicable to this matter.

   Labour Market Testing

2. 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.

3. 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 the relevant Instrument. In addition:

   ·the nomination must be accompanied by the evidence specified in s.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.

4. 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.

5. The Tribunal finds that the applicant is exempt from labour market testing under s.140GBC. Section 140GBC(3) provides an exemption for the sponsor from the requirement to satisfy the labour market testing condition in section 140GBA if:

   (a) either or both of the following are required for the nominated position, in relation to the nominated occupation:

   (i) a relevant associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification; and/or
   (ii) 3 years or more of relevant experience, other than protected experience; and

   (b) the nominated occupation is specified for the purposes of this subsection under subsection (4).

6. The evidence before the Tribunal, which has been carefully set out in the applicant’s submissions filed in the Tribunal on 19 November 2020, establishes that the Nominated Position requires at least a relevant diploma level qualification and at least 3 years of relevant experience to the position. The Tribunal finds that s.140GBC(3)(a) of the Act is satisfied.

7. The position of Customer Service Manager is classified as Skill Level 2 according to the ANZSCO. The Nominated Position of Customer Service Manager (ANZSCO 149212), was specified in the applicable instrument at the time of application – IMMI 13/137. The Tribunal finds that the nominated occupation is specified for the purpose of section 140GBC(4) of the Act. Therefore, the Tribunal finds that section 140GBC(3)(b) of the Act is satisfied.

8. As sections 140GBC(3)(a) and 140GBC(3)(b) of the Act are satisfied, the Tribunal finds that section 140GBC(3) of the Act is met.

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

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

    DECISION

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

    Bridget Cullen
    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.