G'day Japanese & Korean Restaurant Pty Ltd (Migration)

[2020] AATA 3138

G'day Japanese & Korean Restaurant Pty Ltd (Migration) [2020] AATA 3138 (31 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  G'day Japanese & Korean Restaurant Pty Ltd

CASE NUMBER:  1732922

HOME AFFAIRS REFERENCE(S):          BCC2017/735753

MEMBER:George Hallwood

DATE:31 July 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 31 July 2020 at 1:17pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – financial capacity to support position – expenditure on wages – wage paid to nominee (director’s wife) but not to director and daughter working part-time casually – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140GB(2)
Migration Regulations 1994 (Cth), r 2.72(10)(f)

CASE
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 18 December 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 23 February 2017. 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 that the position associated with the nominated occupation is genuine.

4. Mr Sang Won Park, director and secretary of G’Day Japanese & Korean Restaurant Pty Ltd appeared before the Tribunal by telephone on 18 June 2020 as the applicant’s authorised person to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Although an interpreter was required to assist in this matter, the matter itself was an uncomplicated nomination that lent itself to either a telephone or video hearing. As the applicant is a trading business and the related nominee a worker in that business, the Tribunal determined that the efficiencies of a combined hearing by telephone would suit both the nature of the matter and the individual circumstances of the applicant.

5. It was put to the applicant and nominee in writing prior to the hearing that there would be a combined telephone hearing and the Tribunal received no objection. At the start of the hearing it was again put to the applicant and the related nominee and they both indicated they were comfortable with this approach. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant was represented and was given an opportunity to provide further evidence in support of their matter post hearing.

1. This was a combined hearing with Mrs Jaehyang Cheong, review number 1801182, who is the related nominee. The Tribunal also received oral evidence from Mrs Cheong. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

2. The applicant was represented in relation to the review by its registered migration agent, Mr Kyu Man Hwang of Kyu Man Hwang Immigration Services.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

Position must be genuine

1. 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.

2. This provision is intended to ensure that positions nominated under this provision are in skilled occupations that are genuinely needed by the nominating employer. Subclass 457 visa’s were designed to allow employers to sponsor skilled overseas workers to work temporarily in Australia in order to meet short term skill shortages.

3. A range of documents relating to the applicant were provided to the Tribunal prior to the hearing including the current company extract from ASIC, a copy of the 2018 and 2019 financial reports, an organisation chart, an employment agreement between Mrs Cheong and the applicant,  a job description, and bank activity statements for the period from 1 October 2019 to 27 March 2020.

4. The applicant operates a Japanese and Korean food restaurant in Yendgedup, a southern suburb of Perth, Western Australia.

5. Relevantly to this matter the applicant nominated an occupation, “Cook” ANZSCO 351411 and identified Mrs Jaehyang Cheong in the nomination as an applicant for a Subclass 457 visa and as the person who will work in the occupation in the position of Cook in the restaurant.

6. Based on written and oral evidence from the applicant and the nominee the Tribunal was satisfied the work performed by the nominee in the position matched the job description provided to the Tribunal. Mrs Cheong runs the kitchen side of the restaurant while Mr Park runs the front of house and other aspects of the restaurant. They have support staff during busy periods and currently their daughter, Ms Park, works approximately 20 hours a week as kitchen hand and hall staff.

7. Mr Park, is listed on the 457 Nomination Form dated 23 February 2017 as a secondary visa applicant to Mrs Cheong. Ms Park is also listed on the on the nomination form as a secondary visa applicant. During the hearing Mr Park confirmed that Mrs Cheong is his spouse and that Ms Park is his daughter.

Are the position and the occupation a reasonable match?

1. Mr Park stated that the business commenced operation in 2015. The applicant’s revenue has grown from a turnover of $92,601 in 2015/2016 to a turnover of $200,701 in 2018/2019. This is supported by the business’s financial records before the Tribunal.

2. The organisation chart provided in the applicant’s submission of 28 March 2020 shows four employees of the business. During the hearing Mr Park stated that there were now three employees:

   ·Mr Park himself who, according to the organisation chart has an employment status of full time working as director and all-rounder for the business;

   ·Mrs Cheong, the subclass 457 visa applicant that is the subject of this nomination and the cook for the restaurant whose status was listed as full time; and

   ·Ms Park who is described as a kitchen hand and hall staff and whose employment status on the organisation chart is casual. 

3. The employment status of all employees was confirmed by Mr Park at the hearing and his description matched the organisation chart noting that Chiho An no longer works at the restaurant.

4. The applicant’s current restaurant organisation structure of a cook, an all-rounder, and a kitchen hand / hall staff, together with other staff during peak times; is consistent with the size and type of business described to the Tribunal both orally by Mr Park and in documents and submissions provided.

5. The Tribunal is satisfied, based on written and oral evidence provided, that Mr Park and Mrs Cheong are full-time employees of the applicant, and that Ms Park is a casual employee of the applicant. The Tribunal is also satisfied that while this is the minimum structure required for the position associated with the nominated occupation to be genuine, there would be other roles required during peak times or seasons; as evidence provided suggests; in order for the business to operate successfully.

6. Having qualitatively assessed the position and comparing this with the occupation nominated the Tribunal is satisfied that the person occupying the position of Cook is required to undertake ‘tasks’ of the kind set forth in ANZSCO, and the ‘tasks’ required to be undertaken include a significant majority of the tasks set forth in ANZSCO for the occupation.

7. While looking at this matter fresh, the Tribunal notes that the delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) having found that the position associated with the nominated occupation was not genuine. The reasons for that finding were that:

   ·     there was little genuine effort to fill the position within the domestic labour market, the applicant having only advertised the position once;

   ·     there was little or no evidence of claimed business growth; and, in the absence of evidence that the business was growing, the decision maker was not satisfied that the business had the capacity to support the position.

   ·     these factors demonstrated that the position was created to achieve a migration outcome rather than to fill a genuine need.

8. The delegate noted that subclass 457 visa is a visa type designed to enable employers to address labour shortages when they cannot source appropriately skilled Australians to fill genuine positions. This type of visa is not designed to create a job for a particular person.

9. In order to be satisfied that it is a genuine position the Tribunal must be satisfied that the position exists, and that it is what it purports to be.

10. Financial measures can also assist in identifying whether a position is genuine. For example, if an applicant was artificially meeting the salary of the nominated position by not paying other staff, this could indicate that the position was created to achieve a migration outcome rather than to address a genuine labour shortage.

Is the applicant able to financially support the position associated with the nominated occupation?

1. The applicant provided the Tribunal with financial statements for the years ending 30 June 2018, and 30 June 2019. The applicant also provided bank statements for the period 1 October 2019 to 27 March 2020.  A submission from the applicant dated 28 March 2020 states that the applicant’s revenue increased from $92,601 in 2016 to $200,701.83 in 2019.

2. At the hearing Mr Park indicated that Mrs Cheong was paid $54,480 per annum plus superannuation. He said that his daughter received $20 an hour for 20 hours a week work on average and that she was paid about $20,000 per annum. Mr Park said that he was not sure what he was paid but that if he had to estimate it would be between $40,000 and $45,000 per annum. He also stated that the applicant had employed an assistant on a full-time basis until recently.

3. Below is a table prepared by the Tribunal which summarises the income, expenditure and pre-tax profit of the applicant for the 2017/2018 financial year, the 2018/2019 financial year, and for the approximately half year from 1 October 2019 to 27 March 2020.

INCOME	EXPENDITURE	PROFIT/(LOSS)
2017/2018	$161,677	$154,325	$7,352
2018/2019	$200,701	$194,939	$5,762
December quarter 2019 to March quarter 2020	$86,193	$91,855	($5,662)

1. In order to pay the minimum wages Mr Park indicated were required to operate the restaurant: Mr Park - $40,000 (approximately $35,500 after tax); Mrs Cheong - $54,480 (approximately $45,180 after tax); and Ms Park - $20,000 (approximately $19,650 after tax) the wage bill for the applicant would be $100,330 per annum.

2. According to the profit and loss statement: in 2017/2018 the applicant paid $62,244 in wages; in 2018/2019 the applicant paid $75,044 in wages. According to the bank statements for the period 1 October 2019 to 27 March 2020, a period when the two full time wages and one part time wage would be expected to be about $50,165, the applicant paid a total of $26,248 in wages.

3. The bank statements indicate Mrs Cheong received the correct amount in wages after tax during the period 1 October 2019 to 27 March 2020 - $22,048. There is no evidence that Mr Park or Ms Park were paid any wages. Wages of $4,200 were recorded for Chiho An.

4. When questioned about his wage, Mr Park put to the Tribunal that he reinvests his wage into the business. Mr Park indicated that it is normal in his culture to reinvest in the business in order to grow the business. The financial reports provided, in particular the 30 June 2018 or 30 June 2019 balance sheets of the applicant, did not reflect Mr Park reinvesting his wage. As the business was making a loss during the period 1 October 2019 to 27 March 2020 while not paying any wages to Mr Park it is difficult to see how he could be reinvesting his wage. He is simply not being paid.

5. The applicant was invited to provide further submissions in relation to, amongst other things, how employees were being paid and the financial capacity of the applicant to support the position. A submission dated 22 June 2020 was received following the hearing. The submission reiterated what was presented during the hearing and in prior submissions:

   ·     The applicant’s income has been increased approximately twice;

   ·     Because of the increase in income the applicant’s financial position is far better than when the nomination was originally lodged; and

   ·     The applicant has never failed to pay the nominee’s wages.

6. The Tribunal is satisfied that the applicant’s income has doubled between 2015/2016 and 2018/2019. The Tribunal also accepts that the applicant has always paid the nominee’s wages. The Tribunal is not satisfied that the applicant has the financial capacity to support the position.

7. It is evident to the Tribunal that it is only by not paying other employees’ wages that the applicant has been able to pay the wages of the nominee in the financial years of 2017/2018 and 2018/2019. Had the applicant been paying all of their employees as listed in their organisation chart during the periods 2017/2018, 2018/2019, the applicant would have been trading at a substantial loss. The latest financial information provided based on the bank statements during the period 1 October 2019 to 27 March 2020 indicates that the business is operating at a loss, and at the same time not paying two of the four employees listed on the organisation chart.

8. The applicant pointed out that the demographics of the area in Western Australia where the business was set up provides a unique and sound opportunity for growth of the business having little other access to Japanese and Korean cuisine. It is evident to the Tribunal that despite a doubling in income, the business is still unable to trade profitably while paying its employees. On the evidence put to the Tribunal, this trading position has not changed since the nominee commenced employment with the applicant in August 2015.

9. Now that Chiho An is no longer employed, it appears on the evidence that the reason the business continues to exist is to employ Mr Park, Ms Park and Mrs Cheong while only paying the wages of Mrs Cheong.

10. The Tribunal is not satisfied from any of the evidence before it that the applicant can afford to pay the nominee while at the same time meeting obligations to its other employees. The evidence provided which covers two and a half years of business operations demonstrates that the business cannot pay its employees while maintaining profitability.

11. Having looked closely at all of the evidence, for the reasons stated above, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.

12. The applicant did state in the post hearing submission dated 22 June 2020 and signed by Mr Kyu Man Hwang of Kyu Man Hwang Immigraiton [Sic] Ervices [Sic] that:

    The nominator considered it would be improper for any-decision [Sic] maker who is not a qualified accountant or financier to make this type of decision for this purpose.

13. For the sake of completion, the Tribunal is satisfied that the view expressed by the applicant in the submission relating to required qualifications of decision makers, in this case Members of the Administrative Appeals Tribunal, is incorrect.

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

Concluding paragraph

1. 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

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

George Hallwood
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.