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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GREEN LEAF AUSTRALIA GROUP PTY LTD (Migration) [2017] AATA 1849
Case: [2017] AATA 1849
Decision Date: 12 October 2017

CaseChat Overview and Summary

This matter concerned an appeal by Green Leaf Australia Group Pty Ltd against a decision to refuse the approval of a nomination for a Subclass 457 (Temporary Work (Skilled)) visa. The core of the dispute revolved around whether the nominated position of Marketing Specialist was genuine, as required by migration regulations. The decision was made by the Tribunal, presided over by Member Alan McMurran.

The Tribunal was required to determine if the applicant had met the criteria for the approval of the nomination, specifically focusing on whether the nominated position was genuine, as stipulated by regulation 2.72(10)(f) of the Migration Regulations 1994. Additionally, the Tribunal considered whether the applicant was a standard business sponsor or a party to a work agreement, as required by regulation 2.72(4).

The Tribunal found that the applicant had not satisfied the requirements of regulation 2.72(4) as they were neither a standard business sponsor nor a party to a work agreement. While the applicant's representative indicated a pending application for standard business sponsorship and requested a deferral, the Tribunal granted a limited 14-day extension, after which no further evidence of sponsorship was provided. Consequently, the Tribunal proceeded to determine the nomination application. The nominated occupation, Marketing Specialist (ANZSCO 225113), was identified as a skilled occupation requiring a bachelor's degree or higher. However, the primary reason for affirming the refusal was the failure to meet the sponsorship requirement, which precluded the Tribunal from being satisfied that the nominated position was genuine under the applicable regulations. The Tribunal affirmed the decision to refuse the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 McMurranMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to approve the nomination.Alan McMurranMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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.