FRUITOLOGIST ROZELLE PTY LTD (Migration)

[2018] AATA 4919

FRUITOLOGIST ROZELLE PTY LTD (Migration) [2018] AATA 4919 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  FRUITOLOGIST ROZELLE PTY LTD

CASE NUMBER:  1713749

DIBP REFERENCE(S):  BCC2016/2597053

MEMBER:Mr S Norman

DATE:23 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 23 October 2018 at 3:45pm

CATCHWORDS

MIGRATION – nomination approval – standard business sponsor – genuine position – nominated position – Restaurant Manager – business’s finances – profit and loss statement provided – business suffering reasonable losses – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 140GBA,

Migration Regulations 1994 (Cth), r 2.72

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 on 9 June 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 5 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 delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because they were not satisfied the nominated position was genuine.

4. On 8 October 2018, the applicant (represented by Mr Alfred MACRI) appeared at a hearing with the Tribunal to give evidence and present arguments (the Tribunal was initially advised that Mr Daniel Macri would also be giving evidence, but at hearing, Mr Alfred MACRI said he would speak for the nominating business and Mr Daniel Macri would not be attending). The Tribunal also received oral evidence from Mr Kwanchai SIRIWANITCHAYAKUN (the visa applicant), and Dr Mary RICKARD (a witness).

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

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

   Position must be genuine

8. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

9. The applicant (Fruitologist Rozelle P/L) wished to employ a Restaurant Manager (ANZSCO 141111). The nominated salary was $53,900 per annum.[1] The ANZSCO description follows:

   [1] Tribunal – folio 64.

   UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS
   
   CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

   In Australia:  

   AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

   
   In New Zealand:

   NZ Register Diploma (ANZSCO Skill Level 2)

   
   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Tasks Include:

   oplanning menus in consultation with Chefs

   oplanning and organising special functions

   oarranging the purchasing and pricing of goods according to budget

   omaintaining records of stock levels and financial transactions

   oensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

   oconferring with customers to assess their satisfaction with meals and service

   oselecting, training and supervising waiting and kitchen staff

   omay take reservations, greet guests and assist in taking orders

   
   Occupation:

   141111 Cafe or Restaurant Manager

   
   141111 CAFE OR RESTAURANT MANAGER

   
   Alternative Titles:

   Food and Beverage Manager
   Restaurateur

   
   Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.

   Skill Level: 2
   Specialisations:

   Bistro Manager
   Canteen Manager
   Caterer
   Internet Cafe Manager
   Mess Supervisor
   Steward (Navy)

10. In the ‘Statement letter in relation to Genuine position’ dated 10 August 2016, the applicant said “the business aims to offer retail and online shopping of upmarket fresh fruit and vegetables, flowers, local and imported high-end groceries with various selections of products from different parts of the world … [and that] within our store, we also offer patrons a series of upmarket and healthy choices of modern Australian cuisines, wide varieties of deserts, drink and high-end coffee and tea selections. Our cafe restaurant section also provides platters and pickup catering services”.

11. The Tribunal understands that when assessing whether or not the position is genuine, it must consider such things as the nature, size, structure and operations of the business as well as the ANZSCO description (set out above). Based on the evidence presented, it appeared the majority of tasks outlined for the position by the applicant are in line with the tasks contained within the ANZSCO description. However, this must be considered in context of the business. For instance, such matters as the current business operating environment and the size and nature of the business.

12. The organisation chart for the business (lodged with the Tribunal), indicated the following roles:

    ·     Director (name given – Australian Citizen)

    ·     Accounts manager (name given – part-Time – Australian Citizen)

    ·     Shop Assistant Manager (name given – full time – permanent resident)

    ·     Cafe/Restaurant Manager (nominee/visa applicant)

    ·     Customer Service / Grocery Store (three names given – two Australia citizens – one permanent resident)

    ·     Cafe / Restaurant (seven names given – one permanent resident)

13. The above refers to 14 staff – though the organisation chart lodged with the Department identified 15 staff (and the Tribunal understands staff fluctuations commonly relate to business/seasonal demands). Based on the information before them, the delegate was satisfied the limited staff and limited number of tables indicated the size and scale of the cafe and restaurant was relatively small. The delegate also noted the applicant had not lodged verifiable evidence of the business turnover; or that the financial evidence lodged would support a dedicated full time cafe or restaurant manager in the business. After considering all the evidence, the delegate was not satisfied the nominee would perform the full breadth of duties defined in the ANZSCO code.

14. With the Tribunal, the applicant lodged a list of staff names and positions; the duties performed by each[2]; and a menu for the business[3]. Also lodged was the visa applicant’s ‘duties and responsibilities’.  These included but were not limited to:

    [2] Tribunal – from folio 90.

    [3] Tribunal – from folio 85, and from 81.

    ·     Management of cafe and staff, rosters, cleaning schedule

    ·     stock control, orders and management of receipt

    ·     staff supervision and training with high customer service standards

    ·     following hygiene protocols and cash handling

    ·     customer complaint handling

    ·     overseeing cooking and food preparation

    ·     ensuring kitchen and cool room cleanliness

    ·     stock rotation and perishable checks

    ·     opening and closing procedures of salad bar and kitchen area

    ·     stock up, tend to customers in timely manner, daily clean, prep and set up

    ·     artistic designer fruit platters, cheese and cakes

    ·     controlling and supervision of all catering and products and related activities in the restaurant

    ·     operating the catering and products side of the business within the set budget

    ·     coordination with head chef in planning menus and the management of the catering department

    ·     supported all aspects of food preparation, quality control and food display

    ·     greeted customer, providing information for specials and promotion, set up an advertisement displays for new incoming merchandise, food, juice, smoothies and food items

    ·     oversee or register transactions processing of customer purchases, and handle any refunds and overrides

    ·     planned and conducted interviews

    ·     ensured that check areas were properly maintained in a clean and orderly condition always

    ·     follow company policies and procedures and maintained outstanding store condition and visual merchandising standards.[4]

    [4] Tribu nal – from folio 82.

15. The applicant also lodged the following with the Tribunal:

    ·     Photographs of the business premises

    ·     A BAS from October 2017 to December 2017 - indicating total sales of $847,308 – and total salaries of $32,539

    ·     A BAS from April 2018 to June 2018 - indicating total sales of $1,127,751 – and total salaries of $44,643.

    ·     A migration agent letter dated 7 March 2018 & 23 August 2018, which claimed either Mr Daniel Macri (the current director) or Mr Alfredo Macri will attend the hearing (discussed above); the business was registered 5 May 2016; that an accountant believed the business was ‘expected to show a profit for the financial year ended 30 June 2018’; and the qualifications of the visa applicant have been set out.

    ·     An employment contract dated 4 August 2016

    ·     Also lodged were the duties and responsibilities of other staff.

16. With the Tribunal, the nominator also lodged a Trading, Profit and Loss Statement for the Year ended 30 June 2017 which indicated the business had a ‘Loss before Income Tax’ of ($20.996); and for 2016, the loss was ($35,690). The abovementioned accountants letter dated 6 March 2018, said that based on the information provided, the business should be able to afford the salary for the nominated position of Cafe/Restaurant Manager of $53,900; and that the ‘company is expected to show a profit for the financial year ended 30 June 2018’.[5]

    [5] Tribunal – folio 64.

17. When discussed at hearing, the applicant said he owned/operated three businesses in Sydney (one in Bondi and two in the same location in Rozelle). He said he was the Director of these businesses. He also said (words to the effect) that his businesses were profitable. When asked, the nominator said both Rozelle businesses (the fruit and vegetable and the cafe) had commenced around 2015. He also said the cafe business in Rozelle was profitable but the fruit and vegetable business in Rozelle, was not. The nominator then said the earlier profit and loss statements referred to losses for the ‘Fruitologist Rozelle Pty Ltd’, and this was a reference to both the Rozelle fruit and vegetable business and the Rozelle cafe (though he agreed that both businesses were separate legal entities – as was the Bondi business).

18. At hearing, it was said the costs (or losses) of any of the three businesses were covered by the profitability of the other businesses. However, as the three businesses were separate legal entities, and each business was therefore not responsible for the loss of any other business (and no evidence of ie legal mutual guarantee of loss was provided), the Tribunal was not satisfied the financial losses for the cafe business (as set out in the earlier financial evidence for Fruitologist Rozelle Pty Ltd), indicated that business could pay the visa applicant the nominated salary. The Tribunal acknowledges the cafe business commenced in 2015, and such businesses may take some time to obtain profitability.

19. The Tribunal did not formally request post hearing submissions but advised the applicant it would not finalise its decision prior to COB Monday 22 October 2018; should any further evidence and submissions be lodged. The Tribunal also advised that (ie) further financial information should be signed and/or each page initialled by (words to the effect) a person responsible for that information. An unsigned and un-initialled Trading and Profit and Loss Statement for year ended 30 June 2018 was then lodged. Amongst other things, that indicated that for Fruitologist Rozelle P/L, the ‘Profit before Income Tax’ for 2017 was a loss of $20,996; and that in 2018 it was a profit of $249,155. A Balance Sheet for year ending 30 June 2018 and numerous ‘Payroll Advice’ were also lodged.

20. After considering all the evidence, the Tribunal has decided to give the post hearing submissions little, if any, weight. First, the financial documents were not signed and/or initialled and the Tribunal did not know who had prepared this information. Second, no clarification was provided as to whether the 2018 financial information for Fruitologist Rozelle Pty Ltd, related to the fruit and vegetable business and/or the cafe business (and prior financial information indicated the Fruitologist Rozelle Pty Ltd financial advice related to both business in Rozelle). Third, as noted above the Tribunal understands the nominator owns/operates three separate businesses which retain separate legal identities, and that each business was therefore not responsible for the loss of any other business. However, based on all the evidence, the Tribunal was not satisfied the apparent recent reversal in the nominating business’s fortunes (given the advice about Profit before Income Tax for 2018), necessarily constituted an accurate reflection of the nominating business’ profitability for 2018; or to what extent the claimed 2018 profit for the nominating business may have been intertwined with the claimed profits in other businesses. Four, after considering the evidence, the Tribunal was not satisfied the evidence of profit before income tax for 2018 necessarily indicated a net profit for 2018. The Tribunal believes these matters are all relevant to whether the position is genuine.

21. That being said, based on all the evidence the Tribunal is not satisfied the nominated position is genuine, given the accepted financial information lodged, indicated the business had sustained reasonable losses; and given I have placed little weight on the post hearing submissions. Notwithstanding the above-mentioned accountant’s letter, which was not corroborated by other evidence accepted by the Tribunal, I remain satisfied the position is not genuine.

22. For these reasons the requirements of r.2.72(10)(f) are not met.

23. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

24. The Tribunal affirms the decision not to approve the nomination.

    Mr S Norman
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

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

    (a)a standard business sponsor; or

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

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

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

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

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

    (a)a standard business sponsor; or

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

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

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

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

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

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

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

    (a)if:

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

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

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

    (b)if:

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

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

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

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

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

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

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

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

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

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

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

    (b)if:

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

    (ii)      the person is a standard business sponsor;

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

    (c)if:

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

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

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

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

    (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.