Grocers International Impex Pty Ltd (Migration)

[2018] AATA 4924

Grocers International Impex Pty Ltd (Migration) [2018] AATA 4924 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Grocers International Impex Pty Ltd

CASE NUMBER:  1709636

HOME AFFAIRS REFERENCE(S):           BCC2016/4254711

MEMBER:Bridget Cullen

DATE:18 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 18 October 2018 at 6:55pm

CATCHWORDS

MIGRATION – nomination approval – standard business sponsor – direct entry nomination stream – genuine position – sales and marketing manager – business expansion – details of nominees tasks provided – financial documentation provided – favourable employment conditions in comparison to similar jobs – exempt from labour testing – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 140GB, 140GBA, 245AR

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 April 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 16 December 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The applicant has nominated an employee, Philip Navin Chand (the nominee), for the position of Sales and Marketing Manager (ANZSCO 131112).

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

5. The applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal received oral evidence from the applicant's Managing Director, Mr Rattan Deo Kisun, and also from the nominee, Mr Philip Navin Chand.  The hearing was conducted jointly with the review of the related visa refusal of Mr Chand.

6. The applicant was represented in relation to the review by its registered migration agent, who is also a solicitor. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the criteria for approval of the nomination.

9. The Tribunal has available to it information and documents from the Departmental files and the Tribunal's case files.

10. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

    The nomination must comply with the prescribed process

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

12. The Tribunal finds that the applicant has nominated an occupation as set out above under s.140GB (1)(b): r.2.73(1A)(a). The nominated occupation of Sales and Marketing Manager (ANZSCO 131112) is on the list of approved occupations in a legislative Instrument specifying the occupation for the approval of a subclass 457 visa.

13. The Tribunal is satisfied that the applicant has identified the nominee, Mr Chand, as an applicant for a proposed 457 visa, being the person who will work in the occupation.

14. The Tribunal finds the nomination was made using the approved form and the relevant fee was paid.

15. The Tribunal finds that the applicant has identified the nominee in the nomination.

16. The applicant has also provided the required certification that the applicant has not engaged in conduct that constitutes any contravention of the Act or Regulations. The nomination identifies Logan City Centre as the area where the occupation will be carried out, the relevant ANZSCO 6 digit code, and indicates that the applicant is a current and standard business sponsor.

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

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

18. 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.

19. The Tribunal has had regard to the Department's file and is satisfied there is an approved sponsorship agreement with the Department made 28 October 2016 and valid for a period of 5 years to 27 October 2021.

    Identification of the nominee

20. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

21. The Tribunal has had regard to the history of the proceedings involving the applicant and the Department, as contained in the Department's file and the Tribunal's file and referred to above.

22. The Tribunal is satisfied the applicant has identified the nominee, Philip Navin Chand, as the nominee in the application.

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

    Requirements for existing Subclass 457 visa holders

24. The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:

    ·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);

    ·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);

    ·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and

    ·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant Instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

25. As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.

    Information about the nominated occupation

26. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

    ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one; and

    ·the location(s) at which the nominated occupation is to be carried out.

27. The Tribunal finds that the applicant has identified the occupation as Sales and Marketing Manager, ANZSCO 131112.

28. The applicant has specified that the occupation is carried out at the applicant's shopping centre, located on Wembley Road in Logan City Centre.

29. The Tribunal is satisfied that the requirements of r.2.72(8A) are met.

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

30. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

31. There are no facts matters and circumstances before the Tribunal to indicate any contravention by the applicant in relation to the nomination and the Tribunal finds there is a relevant certification made by the applicant to that effect.

32. The Tribunal is satisfied that the requirements of r.2.72(8B) are met.

    No adverse information known to Immigration

33. Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

34. The Tribunal has had regard to all the information before it and is not aware of any facts matters or circumstances indicating there is any adverse information known to Immigration concerning the applicant or a person associated with the applicant.

35. The Tribunal finds that the requirements of r.2.72 (9) are met.

    Specified occupation

36. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in a legislative instrument, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument.

37. The nominated occupation of Sales and Marketing Manager does correspond to an occupation in IMMI 17/060. The instrument does not require that the nomination be supported in writing by a specified organisation. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

38. The occupation Sales and Marketing Manager (131112) is specified in the relevant nominated occupation in instrument IMMI 17/060, which has attached to it the following inapplicability conditions, relevantly:

    ·Item 3 – the position has a base salary of less than AUD65,000

    ·Item 11 – The position is based in a front-line retail setting or predominantly involves direct client transactional interaction on a regular basis

    ·Item 20 – The position is in a business that has an annual turnover of less than AUD1,000,000.

39. Regarding Item 3, the applicant provided a copy of the nominee’s employment contract, dated 7 June 2016, indicating that the base salary is $70,000.00 per annum. At hearing, Mr Chand gave evidence that this had been increased and was $72,000.00 at the time of hearing.

40. The applicant owns and operates a largescale Supermarket/Grocery Store “Shop N Save” at Logan, a smaller Grocery Store/Gift Shop at Albany Creek, and has a warehouse at Logan to facilitate its operations.  Although the applicant business is of a retail nature (groceries, bakery, butcher, prepared foods), the position is not based in a front-line retail setting, and does not involve direct client transactional interaction.

41. The Tribunal has been provided with an updated business structure.  At the time of application to the department, the applicant was still in the process of constructing the supermarket located at Logan.  In his role as Sales and Marketing Manager, Mr Chand responds directly to Mr Kisun, the Managing Director.  There is a Shop Manager at both Albany Creek (Jayant Lodhia, a Permanent Resident) and at Logan (Vikash Chand, holder of a Partner Migrant Class BC visa).  There are then a range of other Supervisory and Shop Assistant positions, particularly at the Logan “Shop N Save” Supermarket location, which are occupied primarily by Australian citizens and student visa holders.

42. The Tribunal has been supplied with photographs of the Shop-N-Save Logan store, which has been constructed, and operating for approximately 6-months.  The role that Mr Chand has performed is an office based role that does not see him in contact with store customers.  As is supported by the organisational structure, other employees are responsible for customer engagement. Mr Chand travels frequently to meet with suppliers and distributors, and was readily able to explain what his role entails in engaging with them.  He gave detailed evidence about negotiations with suppliers in relation to price, in-store marketing strategies, and marketing strategies in relation to particular products.  He also communicates with, and develops marketing strategies, which he then oversees implementation of, sometimes by externally engaged media providers. 

43. The focus of Mr Chand has been to market the “Shop N Save” brand.  Although not legally relevant, the Tribunal has been provided with information about the sister company of the applicant, which shares common directorship, Kalabu Investment Limited.  Kalabu is a large supermarket chain in Fiji, with an annual turnover in excess of $200 million, with over 1500 employees.  Kalabu trades under the brand Shop N Save, and the director (Mr Kisun) has established the Australian company to try and expand the brand globally.

44. The applicant has provided the Tribunal with a copy of its Financial Statements for the financial years ending 30 June 2015 (time of application) and 30 June 2018.  The financial statements have been prepared by external accountants, and disclosure sales turnover of $1,957,571 and a gross profit from trading of $1,268,287 for the financial year ending 30 June 2018.

45. For the reasons detailed in this decision, the Tribunal is satisfied that the nominated occupation is not affected by the inapplicability conditions and that the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

46. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.

47. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

48. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).

49. The company structure chart provided by the applicant shows that there are no Australian citizens performing the same role for the applicant. 

50. Mr Chand's terms and conditions of employment are set out in the offer of employment dated 7 June 2016. It is accepted that the base salary for the nomination will be $72,000 plus 9.5% superannuation. Additionally, the remuneration includes a fully maintained company vehicle, Executive Level BUPA family medical cover, relocation expenses, and annual provision of 2 return economy airfares to Suva.

51. The Tribunal has had regard to the current Sales and Marketing Manager average salary on PayScale, which is indicated to be AUD78,617 for Brisbane based roles, with a potential to earn an average bonus of around $9,500.

52. The Tribunal has also had regard to information provided by the applicant with the nomination application that shows job ads for similar sales and marketing roles on seek.com.au are within a range of $60,000 to $90,000.

53. The Tribunal has had regard to this and all the evidence and is satisfied that the earnings of the nominee, being his base salary of $72,000, with the provision of superanuation, medical insurance, a fully-maintained vehicle, and annual economy airfares for two persons return to Suva will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.

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

    Base rate of pay

55. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the relevant instrument, IMMI 13/028, which specifies the relevant amount as $53,900.00.

56. As the base rate of pay of Mr Chand is $72,000, the base rate of pay for the nominated position is greater than the current TSMIT of $53,900.

57. The Tribunal is therefore satisfied that r.2.72(10)(cc) is met.

    Certification under r.2.72(10)(e)

58. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant  instrument;

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.

59. The information before the Tribunal is that the applicant has provided the relevant certifications when making the application in relation to the tasks of the position and, as the applicant operates a lawful business located in Australia, the nominated occupation being with the business.

60. Furthermore, the qualifications and experience required under ANZSCO is a level of skill commensurate with a bachelor degree or higher qualification, or at least five years of relevant experience. The associated visa applicant, Mr Chand, has obtained a Master’s Degree in Business Administration and has over 20-years relevant work experience (including being the National Sales Manager of a Multi-National Company, Colgate Palmolive in both New Guinea and Fiji).  The Tribunal has been provided with a copy of the nominee’s resume and qualifications, and therefore, the Tribunal is satisfied that the nominee, Mr Chand, has qualifications and experience commensurate with those specified for the occupation in the ANZSCO.

61. The Tribunal is therefore satisfied on the basis of the relevant certifications in the application form that r.2.72(10)(e) is met.

    Position must be genuine

62. 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.

1. The applicant, at pages 3 through 10 of its submissions, has comprehensively set out the nature of the nominated application and the applicant’s business operations.  The detail that has been provided, together with supporting exhibits, is exhaustive.  In summary, the applicant has now built a full-scale supermarket at Logan, spread over 900-square metres.  The Tribunal has been provided with a copy of the lease for both the supermarket, and nearby warehouse.  The applicant has invested more than $2,000,000.00 in the build of the supermarket, and the financial year ending 30 June 2018 Financial Statements, together with the contractor/trader invoices for the build provided to the Tribunal support this assertion.

2. The Tribunal has been provided with photographs of the supermarket, which is now in full operation and stocked with a range of products.  One objective of the supermarket (in addition to competing with the Woolworths and IGA that are proximate) is to compete for the Indian and Pacific Islander market more broadly.  The supermarket has all the usual departments one would expect at a supermarket, such as a café and bakery, a deli, a butcher, a cold area, and a kitchen. 

3. In trying to expand its operations, compete with the existing competition, and appeal to the Indian and Pacific Islander market, it is apparent that a sales and marketing manager is required.  At the time of application to the Department, the applicant had not yet commenced construction.  Nearly two years has passed since the applicant applied for approval.  The role involves strategic decisions within a competitive environment, multiple service and product lines, and a need to develop multifaceted marketing strategies. 

4. The Tribunal discussed with the applicant in detail what the nominee does in his role as a Sales and Marketing Manager, a role he has now worked in fulltime for nearly two years, and is satisfied that the applicant has a genuine need for a Sales and Marketing Manager, and that the nominee, Mr Chand, undertakes the role on a full-time basis.

5. For these reasons the requirements of r.2.72(10)(f) are met.

   Employment under contract

6. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.

7. The Tribunal is satisfied that the applicant has provided a written contract of employment, the offer dated 7 June 2016 signed by the applicant and the nominee, indicating the nominee's salary, plus superannuation and benefits as set out earlier in this decision.

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

   Work agreements

9. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.

10. The applicant is not a party to a work agreement. The requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

11. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

12. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.

13. In this case, the nominated occupation is Sales and Marketing Manager, ANZSCO 131112. This occupation is classified as Skill Level 1 in the ANZSCO. Occupations classified in the ANZSCO Skill Level 1 are specified for the purposes of the occupational exemptions in s.140GBC(4)(a): IMMI 13/137. The position description for the nominated position indicates that the minimum required qualification for the position is qualification to a bachelor degree in business. The Tribunal is satisfied the nominee has a Master of Business Administration (Marketing Management), and a Certificate IV in Business Leadership and Management.  He additionally has more than 5-years of relevant experience as set out on his detailed Curriculum Vitae.

14. In these circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the labour market testing condition in s.140GBA.

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

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

    DECISION

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

    Bridget Cullen
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

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

    (a)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

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

    (iv) a party to negotiations to a work agreement (other than a Minister); and

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

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

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

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

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

    (a)a standard business sponsor; or

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

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

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

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

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

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

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

    (a)if:

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

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

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

    (b)if:

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

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

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

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

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

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

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

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

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

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

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

    (b)if:

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

    (ii)      the person is a standard business sponsor;

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

    (c)if:

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

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

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

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

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.