GREEN LEAF AUSTRALIA GROUP PTY LTD (Migration) - [2017] AATA 1849

GREEN LEAF AUSTRALIA GROUP PTY LTD (Migration) [2017] AATA 1849 (12 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  GREEN LEAF AUSTRALIA GROUP PTY LTD
CASE NUMBER:  1516797
DIBP REFERENCE(S):  BCC2015/2900559
MEMBER:Alan McMurran
DATE:12 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 12 October 2017 at 4:26pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) – Genuine position – Marketing Specialist – Insufficient evidence provided
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA
Migration Regulations 1994, r 2.72, r 2.73

CASES
First Cargo Pty Ltd v MIBP [2015] FCCA 2091
Abalone World Pty Ltd v Minister [2017] FCCA 252

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 December 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 5 October 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72 (10)(f) of the regulations because the nominated role of Marketing Specialist did not correspond with an occupation specified by the Minister in a written legislative instrument. The relevant instrument at the time of decision by the Tribunal is IMMI 17/060 which is the instrument now in force.
The General Manager of the applicant, Roger Newport, appeared before the Tribunal on 20 September 2017 to give evidence and present arguments. The CEO, Mr Lin Xiuming, also appeared but did not give evidence. The remaining two directors did not appear or attend the hearing. The Tribunal also received evidence by telephone from another witness, Susanna Smith, who is described as the Manager, Economic Sustainability, Kempsey Shire Council. The nominee, Mr. Jingyu Lin is currently offshore in China and did not appear.
The applicant was represented in relation to the review by its registered migration agent, Mr. Dong Lin.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination. The Tribunal was not satisfied that the requirements of r.2.72 (10)(f) have been met, which clause requires the position associated with the nominated occupation to be genuine.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB (2).
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. The applicant is not a party to a work agreement within the meaning of that term in section 5 of the Act and regulation 2.76 (2). That issue does not arise for further consideration.
At the hearing, the representative confirmed the applicant was not a standard business sponsor. Accordingly, the requirements of r. 2.72 (4) have not been satisfied.
The applicant’s representative said that the applicant had applied for approval as a standard business sponsor in June 2017, but did not have the exact date available. The representative said the application was yet to be determined and that he would ask the Tribunal to defer making a decision on the nomination application, pending approval of the sponsorship application renewal. The Tribunal noted that according to the Department records, the previous sponsorship agreement dated from 12 August 2014 to 12 August 2017.
At the end of the hearing, the Tribunal agreed to defer the making of a decision for a short period of 14 days until the representative had an opportunity to satisfy the Tribunal there was an approved or pending sponsorship application. The Tribunal also noted that it was unlikely in any event that a decision would be made within 14 days and at the end of which period no further extensions would be granted where the nomination application failed, as there would be little utility in awaiting the outcome of the approval application.
The extension period expired on 8 October 2017. The applicant has made no further submission nor provided any evidence of a further nomination application which has either been lodged or which is pending awaiting decision by the Department.
No further request for an extension of time has been made by the applicant and the Tribunal has proceeded to make a decision on the nomination.
Specified Occupation
Clause 2.72 (10) (aa) requires that the nominated occupation and its six digit code correspond to an occupation and six digit code specified in the Minister’s legislative instrument IMMI 17/060, being the instrument in force at the time of this decision.
The nominated occupation in this application is Marketing Specialist with the specified code, ANZSCO 225113. ANZSCO notes that a marketing specialist “identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation’s goods and services.” The occupation is classified as AQF 1 meaning a level of skill commensurate with a bachelor degree or higher qualification, being the highest ANZSCO skill level.
The title alone does not determine the occupation and may not be sufficient to satisfy the requirements of the Regulation. The Federal Circuit Court has stated[1] that in considering whether an applicant has satisfied the relevant clause in the Regulation, the Tribunal must determine whether the job nominated corresponds to the job described in the ANZSCO description. The Tribunal is required to examine the proposed duties of the nominated employee against those duties corresponding in the ANZSCO description of the occupation. Were it otherwise, “the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another”[2].
[1] [2013] FCCA 1697 at [37] and [38] per judge Burchardt.
[2] [2015] FCCA 2091 at [30] per judge Smith.
In this instance, the Tribunal is required to assess whether the actual duties to be performed by the nominee are those of a Marketing Specialist as described in ANZSCO.
The Tribunal finds that on the evidence before it, the duties to be performed by the nominee in his role with the applicant are not those of a Marketing Specialist, although there are elements of a marketing role incorporated in the position. The analysis supporting this finding is set out below and the Tribunal finds that the nominated occupation of Marketing Specialist is not genuine and that the requirements of 2.72 (10) (aa) are not met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The application of this provision has been explained by the Federal Circuit Court in First Cargo Pty Ltd v MIBP[3] where the court determined that the Tribunal needs to consider whether “the position in question is genuine in that it exists but also whether it really is what it purports to be”. The Court described this two-step process as “a qualitative analysis” of the position to determine whether it is really what it purports to be, and not simply whether the duties relevant to the position include the majority of those referred to in ANZSCO in any particular instance.
[3] [2015] FCCA 2091
In the delegate’s decision, concern was raised about several aspects of the nominated occupation and in particular the following:
·the size structure and operations of the business, described as “small-scale”;
·the ANZSCO description and the matching process;
·the ability to assess projected growth against verifiable independent information such as duly secured contracts or independent audit;
·the operating environment of the business where employees are “seasonal staff”;
·no demonstrated growth in sales and revenue in the absence of comparable information;
The delegate determined that based on the information available, there was insufficient evidence to support the claim that the nominated occupation was genuine, taking into account the context of the operating environment and whether the nominee would actually and regularly be performing the full breadth of duties as described or defined in ANZSCO, in the relatively modest financial environment of the business operation and its scope and scale.
The Tribunal explained to the applicant at the hearing that it takes into account material in the form of documents and information provided by the applicant in the Department’s file, the Tribunal’s file and the submissions and presentation at the hearing. The Tribunal explained to the applicant that it considers the matters afresh and makes a decision whether or not to affirm or remit the matter based on that information.
Evidence and Findings
At the hearing, the principal submissions were made by the witness, Barry Newport, who is the general manager of the applicant. The applicant is described as a green leaf farm, modelled on a much larger operation currently set up in China. Its purpose is to develop and grow summer crops in winter and distribute them in bulk for sale through a wholesaler network, operating in markets currently in Melbourne at Footscray, Sydney at Flemington and Brisbane at Rocklea.
Mr. Newport stated that he had originated the idea of green leaf farming for development in Australia and was a founder of the company in 2012. He had found investors through introductions in China and the principal investor was currently the CEO, Lin Xiuming. The CEO has invested in excess of $3 million in the venture. Mr Xiuming is a Chinese citizen and the holder of a 457 visa.
The business is conducted from a farmhouse on 80 ha, situated at Clybucca in New South Wales in the Shire of Kempsey. The general manager himself resides in a unit at South West rocks.
There are two directors, Chen Meiqin (Chen) and Luo Huizeng. Chen and spouse, Ye Gemao, who is the general technical manager for the applicant, are both currently 457 Visa holders and reside at the farmhouse. The company also employs an agricultural scientist, Chen Zikui, and spouse Shang Zhuying both of whom are 457 Visa holders and also living at the farmhouse. The remaining employees (approximately 24 to 28 currently) are described as temporary or seasonal workers doing picking, packing and plant maintenance at the property.
The nominee is described as a university graduate from China who has visited the property several times with his father, who is the CEO and principal investor (Lin Xiuming). Mr Newport described his introduction to the CEO who runs a similar larger scale operation in China on which the green leaf farm at Kempsey is modelled. Mr. Newport said that he had been to China visiting the operation there at least 13 times in the last few years. The object of the farm is to grow climate controlled vegetables with high yields and high quality using hothouses. The witness described the business model as developing the Macleay Valley fruit bowl with the support of the Local Kempsey Shire Council and businesses and encouraging local industry growth and employment.
The witness described the process of growing vegetables which began with capsicum and pepper and has expanded into tomatoes and cucumber and eggplant. Product is taken directly to markets in Sydney, Melbourne and Brisbane and sold under contract to wholesalers using supply agreements.
The Tribunal asked the witness a number of questions about marketing undertaken to date and intended by the applicant. The witness stated that he undertook most roles within the business and was aware that no formal advertising had presently been undertaken by the company.
Sale of products was negotiated directly with wholesalers using supply agreements copies of which were produced in the documentation made available to the Department. The witness went so far as to say that he thought marketing of vegetables was not relevant and that he undertook the job of selling the product himself by travelling to the various markets and dealing directly with wholesalers. He explained that product was sold by the carton and that he dealt principally with about five agents who were authorised wholesalers under customised horticultural agreements in Melbourne, Brisbane and Sydney. He explained that those agreements allowed him to sell to particular retailers and suppliers as much volume as he could produce, and which he said had increased substantially over the past five years.
When asked about any particular marketing techniques used, the witness said that people “purchase with their eyes” and that the vegetables “sell themselves”. If the quality of the product is not there, the product will not be sold. The witness said that growth in the past five years had substantially occurred due to his personal efforts in maintaining contacts with particular wholesale agents in the particular markets.
Mr Newport stated that he thought growing the product for export overseas was a natural development and that he would require a marketing specialist to assist the applicant in doing so. He identified the overseas market as China and that the current CEO who already operates a business in China would be able to facilitate growth of an export market to that country.
He said that the CEO does not speak English and that it was important for there to be a liaison person between himself and the company, the CEO, and any interests in China who they might seek to exploit. The person he identified as the appropriate marketing specialist would be fluent in Mandarin and English and familiar with marketing techniques in China.
The witness indicated that there was no marketing plan to develop the Australian market locally, and that the intention was to expand the volume of production within Australia with a view to overseas export.
The witness stated that the nominee to be appointed to the role was a graduate and had Chinese experience working on his father’s farm and understood marketing techniques to be used in China.
Those techniques were not identified in evidence and the witness indicated he would be relying upon the experience of the nominee and his father and their skill in establishing a market foothold within China for the company’s product.
The witness was asked about any intention to advertise and create a marketing plan for the promotion and selling of the product and for supporting its growth and development both within Australia and overseas. He conceded that there was no such current marketing plan but that it was intended the nominee when appointed would be able to advise and consult in that regard.
The Tribunal noted that the witness made a number of statements about local marketing to the effect that it was not seen as important or even relevant and that the principal objective was to develop an export market to China. This role would be crucial for the nominee who would create the necessary liaison between the CEO and the company, as the nominee was bilingual.
It was intended that the nominee would work from the farmhouse so that he could observe and learn the techniques being used and how to exploit that for the purpose of developing marketing opportunities in China. He said that will be the principal role of the nominee to enable the development of that market and the shipping of vegetables to China. The nominee’s role will be to penetrate the Chinese market using contacts available to him and from his father, but without advertising in the traditional sense and utilising strategic planning.
The witness was asked about the specific tasks set out in ANZSCO for the occupation and which he confirmed he had read but thought could not be identified directly on a one-to-one basis with tasks he anticipates for the nominee.
Those tasks for the nominee will involve liaising with Chinese contacts for the Chinese market but in a fashion which has not been identified and where no plan is currently in place. It is proposed that would be a matter for the new marketing specialist in that role, to create a marketing plan when appointed.
The witness conceded the nominee has no experience in marketing in Australia, other than the few visits to the applicant property at Clybucca where he has observed operations, and in discussion directly with the witness as general manager, where he has explained how product is sold in the Australian marketplace.
As conceded by the witness, that sale process does not involve the use of a direct marketing plan or indeed any advertising and is built upon client relationships with wholesalers operating out of the different markets.
The Tribunal finds on the evidence that the principal objective of appointing the nominee to a position of marketing specialist would be for him to create opportunities to penetrate the Chinese market and specifically be engaged for that purpose. The Tribunal finds that there is no existing plan or objective to incorporate a marketing or advertising campaign locally for the purpose of creating new local opportunities for existing product, or supporting business growth and development in that fashion through the execution of marketing objectives, policies and programs.
Although there is some overlap with tasks identified by ANZSCO, such as researching potential demand and marketing characteristics in China, the Tribunal finds that the overall tasks as broadly specified in the ANZSCO criteria do not exist in the job role propounded by the witness.
The Tribunal appreciated the evidence from the second witness, Susanna Smith (appearing by telephone), who was herself a graduate and marketing specialist with significant experience, working for Kempsey Shire Council. Ms Smith was unable to say or specify what marketing plan might be in place for the applicant and the nominee, other than to say that the Council in general terms encouraged future growth plans for the applicant in the local area and which planned growth might result in additional skill jobs in the Macleay Valley.
Ms Smith explained the importance in the local community of such businesses and in particular the business of the applicant with whom she had had dealings for several years, including travelling to China and meeting with the nominee. Ms Smith saw the opportunity for the applicant becoming an exporter as having growth opportunities for the local community and for providing continuity in the business and stability which would also benefit the local community and the development of the Macleay Valley fruit bowl concept. The witness however was unable to identify any specific marketing skills of the nominee or marketing plans in which he might be engaged as a specialist for the applicant.
The Tribunal found both witnesses to be extremely candid and straightforward and in particular, the fact that Mr Foster conceded that there had been no structured marketing in place to date, other than his own efforts in dealing directly with wholesalers. Other than that, it would be a matter in the future for the nominee to provide the necessary skills and expertise to exploit opportunity for penetrating a market in China.
The applicant’s representative made several submissions at the end of the hearing to the effect that the Tribunal should not simply look to a matching exercise of the tasks specified in ANZSCO against the proposed plan for the nominee and business growth and objectives of the applicant.

The representative pointed out that the company’s growth was substantial since the Department’s analysis in 2015 and that it now had a turnover in excess of $3 million per annum as per the last financial reports submitted recently and just prior to the hearing.
The Tribunal acknowledges the increasing growth and the fact that the business is expanding. If finds however that there has been no significant growth in employment numbers since 2015, that the size of the facility at Clybucca limits the number of employees who can be useful on a seasonal basis for the product being grown there, and that there has been no development of any significant nature in terms of infrastructure, plant or equipment that has been identified. It is as indicated by the witness essentially a family business controlled by the CEO and run by himself as general manager and with the intention that the nominee and the CEO’s son, will facilitate the marketing of product in China.
The Tribunal finds that the position proposed for the nominee does not exist and that there is no defined task or role, other than in general terms to exploit a market in China.
On its own that is an objective not a specific task, and not one which aligns with specific ANZSCO tasks for the occupation of Marketing Specialist. There is no identification of how such an objective will be implemented, and no budget or pricing for advertising or promotion of the company’s product in that market. Those are matters to be left to the future and for the nominee to consider.
The Tribunal has had regard to the information supporting the application which includes examples of selling agreements and an industry Award supporting the salary proposed for the nominee of $65,000 per annum.
The Tribunal notes the general statement[4] in the business plan where the budget for marketing “will be targeted at the wholesale market” and finds as per the evidence of the witness that in fact very little marketing occurs because it is simply “not relevant”. This is corroborated by the financial reports, firstly for the financial year ending 30 June 2015, where expenditure on advertising is $385.41, and more recently the figures provided for the financial year ending 30 June 2016, where expenditure on advertising was $3,546.08.
[4] At DIBP file169-176
The Tribunal finds that an organisation with such a small advertising budget does not require the services of a marketing specialist, to whom they would be paying a minimum salary of $65,000 per annum. The evidence points to a conclusion that there is no such position available (the position does not exist in fact) and that the occupation has been nominated to create a position for the nominee.
The applicant’s delegate presses the Tribunal to look beyond the ANZSCO description of a marketing specialist and to take into account the objectives and growth of the business for their own account.
The Tribunal agrees with the representative that the business has grown and the financial information supports its positive growth and development. The Tribunal accepts the submission from the representative that the size and structure of the organisation is not necessarily determinative of whether the services of a marketing specialist as such, might be required.
But even if the Tribunal were to accept that it can go outside the ANZSCO descriptions for the role and the tasks to be performed, the likely tasks of the nominee in this instance are quite specific and of a singular nature, namely to penetrate the Chinese market, which has been identified as the sole objective for the nominee and which role is in general terms much broader and outside the cumulative and specific tasks identified in the ANZSCO guide for the occupation.
The Tribunal finds that the role identified for the nominee cannot properly be described as a marketing specialist in any relevant sense. The Tribunal is fortified in that view on the evidence presented, to the effect that virtually no marketing has been or is presently being undertaken by the applicant.
The role of the nominee will be more that of a sales representative for the applicant, liaising between himself, the CEO and the applicant and operating in a market in China which is already in existence and operating with the CEO and his separate green leaf business in that country. It is hard to determine what added benefit the nominee’s appointment will have for the applicant, where the applicant itself through its existing connection with the CEO is already able to exploit the sale of its product in that market.
For these reasons, the Tribunal is not satisfied that the position of marketing specialist is genuine and that the requirements of 2.72 (10) (f) have been met. The Tribunal is not persuaded that it can go beyond the ANZSCO descriptions for the relevant occupation when considering the evidence and the submissions made in this instance.
The Tribunal finds that the duties of the nominated position are not consistent with the title of the nominated position. The Tribunal finds that the nominated position is not what it purports to be, and that the test in Cargo First requiring a qualitative analysis of the position and its comparison with the occupation now described by the proposed sponsor, namely that of the marketing specialist as described in the ANZSCO tasks is not made out[5] and that for the reasons set out above, the position for the occupation of marketing specialist does not in fact exist.
[5] See also [2017] FCCA 252, per Judge Driver, Abalone World Pty Ltd v Minister at 40-41.
The Tribunal finds that on the evidence before it, the applicant has not met the applicable criteria for the nomination to be approved.
For these reasons the requirements of r.2.72(10)(f) are not met.
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
The Tribunal affirms the decision not to approve the nomination.
Alan McMurran
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.
(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 that:
(i)       are provided; or
(ii)      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.