GUANACO PTY LTD (Migration) - [2018] AATA 3514

GUANACO PTY LTD (Migration) [2018] AATA 3514 (8 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  GUANACO PTY LTD
CASE NUMBER:  1622255
DIBP REFERENCE(S):  BCC2016/1348325
MEMBER:Susan Trotter
DATE:8 August 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 08 August 2018 at 6:04pm

CATCHWORDS
Migration – Standard business nomination – Contract Administrator – Whether the nominated position is genuine – Limited evidence before the Tribunal - Sponsoring business of a relatively modest size – Nominated occupation typically associated with larger businesses – Decision affirmed
Practice and Procedure – Request for extension of time to respond to request for information – Consideration of principles in Bautista – Consideration of appropriate proscribed period – Applicant did not respond to request for information within proscribed period – Applicant not entitled to hearing
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359, 359A, 359C, 360(3), 363, 363A
Migration Regulations 1994 (Cth), rr 2.72(10)(f), 2.73, 4.18A(4), 4.18B(5)
CASES
Bautista v MIBP [2018] FCA 1114
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Parekh v Minister for Immigration and Citizenship [2007] FMCA 633
Rathor v MIBP [2014] FCCA 10
Re Drake (No. 2) (1978-1980) 2 ALD 634
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection[1] (the Minister) on 7 December 2016 to refuse to approve the applicant, Guanaco Pty Ltd’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
[1] Now the Minster for Home Affairs
Under the Act and Regulations, prior to 18 March 2018[2], there were three stages in sponsoring an employee from overseas in the Subclass 457 visa programme as follows:
(a) Sponsorship – an employer applies for approval as a standard business sponsor;
(b) Nomination - the employer nominates an occupation for a prospective or existing Subclass 457 visa holder; and
(c) Visa application - the person nominated to work in the nominated occupation applies for the Subclass 457 visa.
[2] From which date, new applications for Subclass 457 visas ceased
In the standard business sponsor context, the nomination is the second phase of this three-stage business sponsorship scheme under the Act and the Regulations. Specifically, nomination is the process through which a standard business sponsor, or a non-Ministerial party to a work agreement, nominates for approval an occupation which a visa holder, visa applicant, or proposed visa applicant will undertake. This ensures that the standard business sponsor, or party to the work agreement, agrees to be the sponsor for that particular visa holder, visa applicant, or proposed visa applicant.
Guanaco Pty Ltd applied for approval on 3 April 2016, nominating the occupation of Contract Administrator (ANZSCO Code 511111) to be undertaken by Mr Vikramjeet Singh Saran.
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 nomination to be approved. 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 r.2.72(10)(f) was not satisfied because the delegate was not satisfied that the nominated occupation of Contract Administrator was genuine. In particular, the delegate was not satisfied that Guanaco Pty Ltd had demonstrated that the nominated position is consistent with the nature of the business operated by Guanaco Pty Ltd and, therefore, did not consider the nominated occupation to be genuine.
Guanaco Pty Ltd lodged an application for review of the delegate’s decision with the Tribunal on 23 December 2016 and provided a copy of the delegate’s decision with the application.
Guanaco Pty Ltd was represented in relation to the review by their registered migration agent.
Section 395(2) invitation
On 10 July 2018, the Tribunal wrote to Guanaco Pty Ltd at the email address provided at the time of the application for review, being the registered migration agent’s email address as advised to the Tribunal. The letter was issued pursuant to s.359(2) of the Act, inviting Guanaco Pty Ltd to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. The letter included extracts of those provisions for reference.
Request for an extension of time to respond to the s.359(2) invitation
On 23 July 2018, the Tribunal received a request for an extension of time for Guanaco Pty Ltd to respond to the Tribunal’s 20 July 2018 invitation, as follows:
“… We note that the due date to respond to your letter dated 10 July 2018 is 24 July 2018.
Due to various circumstances we request an extension of time to respond. While I continue to seek my client’s instructions and gather documents and information necessary for our response, I have had personal circumstances which have limited my capacity to finalise our written submissions in time (I am in my final trimester and was unfit for work for most of the past working week).
Whilst we appreciate the Tribunal’s own deadlines and requirements, we request an extension of time (14 days) to respond. “
On 24 July 2018, the Tribunal wrote to the Guanaco Pty Ltd, via its registered migration agent, advising that an extension of time had been granted as requested until 7 August 2018.
The decision of Bautista v MIBP [2018] FCA 1114 (Bautista) was subsequently handed down by the Federal Court on 27 July 2018 . The court held that there is no valid ‘prescribed further period’ under r.4.18A(4) of the Migration Regulations 1994 (which purports to limit the period to 14 days) by which the Tribunal may extend the prescribed period in which to respond to a s.359A invitation. Rather, the Court in Bautista found that ‘the power of the Tribunal pursuant to s.359B(4) to extend time for a visa applicant to respond to an invitation appears to be at the discretion of the Tribunal’. By analogy, the same position applies to the Tribunal’s power in relation to a s.359(2) invitation, that is, there is no valid prescribed further period pursuant to r.4.18B(5) in relation to a s.359(2) invitation.
Subsection 359B(4) relevantly provides as follows:
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
The Tribunal in considering the request for an extension of time, took into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal also had regard to the fact that the information invited to be provided in the Tribunal’s letter of 10 July 2018 was integral to Guanaco Pty Ltd’s application. Further, the Tribunal had regard to Rathor v MIBP [2014] FCCA 10 (Rathor), where it was stated that in considering a request for adjournment, the Tribunal should have regard to the importance of the statutory framework including particularly the applicant’s right to a hearing and to be assisted at the hearing. Rathor was in relation to a different issue, that is, a hearing adjournment request because of the unavailability of an agent rather than an extension of time request within which to respond to a statutory invitation, although in the Tribunal’s view analogous considerations apply.
In light of Bautista, the Tribunal has further considered the extension of time request made by Guanaco Pty Ltd. The Tribunal, in agreeing to the extension of time requested, considered the matters canvassed above, and in particular the specified 14 further days requested. However, the Tribunal recognises that pre-Bautista, such a request was presumably made on the understanding that 14 days was the maximum further period that could be allowed by the Tribunal. The Tribunal therefore considered if unfairness could arise if Guanaco Pty Ltd needed a longer period to respond but did not request a longer period, and was not given a longer period, because it may have been considered, at the time of the extension request, that only a maximum 14 days extension was permissible. Notably in this regard, there has been no further contact by on or behalf of Guanaco Pty Ltd with the Tribunal, either to provide the information requested or to seek further time in light of Bautista, or at all.
In the exercise of its discretion as to whether to extend the period in which to respond to the s.359(2) invitation, the Tribunal considers a further period of 14 days reasonable. A 14 day extension, in addition to the initial prescribed period of 14 days in which to respond to the s.359(2) invitation, means that Guanaco Pty Ltd had 28 days to provide the information it was invited to provide and to avail itself of assistance from its chosen registered migration agent. The Tribunal observes that it was primarily the migration agent’s personal circumstances that was given as the reason for the extension of time request and acknowledges that those circumstances could understandably delay Guanaco Pty Ltd’s timeliness in responding if relying upon their chosen migration agent. However, the Tribunal considers that a further 14 days (28 days in total) is sufficient time for Guanaco Pty Ltd’s chosen migration agent to have either assisted Guanaco Pty Ltd in providing the requested information, or for Guanaco Pty Ltd to have arranged alternative assistance. This is particularly so in circumstances where Guanaco Pty Ltd has been aware since 7 December 2016 of the reasons for the nomination application being refused. Further, in this regard, the Tribunal observes that Guanaco Pty Ltd’s migration agent contacted the Tribunal on 19 April 2018 seeking an update as to progress of the matter in circumstances where the migration agent indicated an awareness of the average decision making time of the Tribunal such that they would have been aware that the matters in issue would be required to be addressed in the foreseeable future.
The Tribunal considers it has properly and reasonably exercised its discretion to extend the period of time within which Guanaco Pty Ltd had to respond to the s.359(2) invitation by 14 days and no longer, by taking into account all of the circumstances of which the Tribunal is aware. If there had been further contact by Guanaco Pty Ltd or its migration agent, or further reasons put forth as a basis for requesting additional time, the Tribunal would have considered any further such request or matters. However, as already noted, the Tribunal has not heard further from Guanaco Pty Ltd nor its migration agent.
Invitation to appear before the Tribunal
No response has been received to the 10 July 2018 s.359(2) invitation nor has there been any further contact by Guanaco Pty Ltd or its registered migration agent with the Tribunal. The Tribunal therefore finds that Guanaco Pty Ltd has not given the information invited to be given before the time for giving it passed.
Pursuant to ss.359C(1), 360(3) and 363A of the Act, Guanaco Pty Ltd is not entitled to a hearing - the Tribunal is therefore not required to invite Guanaco Pty Ltd to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal also considered whether it would be appropriate to further adjourn the application for review under s.363(1)(b) of the Act to allow Guanaco Pty Ltd additional time in which to provide the requested information. As already canvassed, Guanaco Pty Ltd has been aware since 7 December 2016 of the reasons for the nomination application being refused (over 18 months ago) and has had the benefit of representation from a registered migration agent in order to assist it with this application. The Tribunal has already allowed further time as requested. The Tribunal considers it reasonable to expect that Guanaco’s Pty Ltd’s representative, as a registered migration agent, has an understanding of the requirements of the legislation and the consequence of not providing the information requested in the invitation the Tribunal sent to Guanaco Pty Ltd on 10 July 2018 before the time for giving it had passed. Notably those possible consequences were also set out in the Tribunal’s letters of 10 July 2018 and 24 July 2018. Further, if the migration agent held some doubt as to those matters following the Bautista decision, further contact could have been made with the Tribunal. However, as already noted, that has not occurred. Whilst the Tribunal is understandably required to be reasonable in exercising its functions, the Tribunal does not consider that extends to any requirement to actively follow up an applicant, particularly in circumstances where they are represented.
In these circumstances, the Tribunal considers that Guanaco Pty Ltd has had sufficient time to provide the information invited to be provided. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow Guanaco Pty Ltd more time in which to demonstrate that it meets the relevant criteria under r.2.72, including r.2.72(10)(c) of the Regulations and s.140GB of the Act.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether Guanaco Pty Ltd meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Act and Regulations do not define the term ‘genuine’ for the purposes of r.2.72(10)(f). The Tribunal notes that the Macquarie Dictionary Online defines the word ‘genuine’ to mean to ‘being truly such; real; authentic; properly so called; sincere; free from pretence or affectation’.
The Tribunal notes that the Department of Home Affair’s policy in the Procedures Advice Manual 3 (PAM3) provides the following guidance in terms of what is required by paragraph 2.72(10)(f):
4.6.11. Genuine position
4.6.11.1. Overview
Regulation 2.72(10)(f) provides that the Minister must be satisfied that the position associated with the nominated occupation is genuine.
This is considered an important regulatory criterion in terms of ensuring that the intention of the subclass 457 program is met – that is, it is used to address temporary skill shortages, for approved occupations outlined in the relevant legislative instrument, in circumstances where an Australian worker cannot be sourced. It was introduced to provide the Department with the ability to refuse a nomination if there were indicators that a semi-skilled position had been ‘dressed up’ to appear more skilled in order to facilitate a visa for a person.
To avoid doubt, the requirement is not that the position itself must be genuine or ‘needed’, rather it is that the position associated with the nominated occupation must be genuine. That is, the position must exist and also be what it purports to be.
·For example, if a fundraising business is seeking to employ a person to dress in an animal costume and collect donations from the general public and has lodged a nomination application for the occupation of Marketing Specialist (ANZSCO 225113), in assessing the nomination against regulation 2.27(10)(f), whether the business has a genuine need for such an employee is irrelevant. For this criterion to be satisfied, the officer would need to be satisfied that a position exists that requires the occupant to undertake the duties of a Marketing Specialist (as described in ANZSCO) - which would appear unlikely in this case.
[Tribunal emphasis]
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake (No. 2) (1978-1980) 2 ALD 634. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations. The Courts have also held that these guidelines are incapable of being elevated into legally necessary or relevant considerations. There is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant. The policy guidelines in PAM3 nonetheless provide a useful starting point in assessing whether the position associated with the occupation nominated by Guanaco Pty Ltd is genuine.
Additionally, the Tribunal observes that r.2.72(10)(f) places the nominated occupation at the centre of its focus. As a result, the Tribunal considers it appropriate to have regard to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code 511111 in assessing whether the position associated with the nomination occupation, ‘Contract Administrator’, is genuine. Notably, the Courts have generally endorsed ANZSCO as a consistent and authoritative set of definitional rules and descriptions for classifying occupations: Parekh v Minister for Immigration and Citizenship [2007] FMCA 633 (Parekh) and Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843 (Wang). The Tribunal acknowledges that Parekh and Wang involved different legislative provisions, rather than the interpretation of r.2.72(10)(f). It further notes that occupational assessments are complex and dynamic, as well as the likely statistical limitations ANZSCO may well have in properly classifying individual occupations throughout Australia and New Zealand. Therefore, the Tribunal accepts that in assessing whether the requirements of r.2.72(10)(f) are met it is appropriate to avoid relying solely on a narrow matching process between the position description provided for the nominated position by an applicant and the relevant ANZSCO occupational definition.
For the purposes of r.2.72(10)(f) in the current matter, the nominated occupation is that of a ‘Contract Administrator’ and ANZSCO Code 511111 relevantly states:
CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.
…
Tasks Include:
odeveloping, reviewing and negotiating variations to contracts, programs, projects and services
oresponding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
omanaging paperwork associated with contracts, programs, projects and services provided
oworking with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
oadvising senior management on matters requiring attention and implementing their decisions
ooverseeing work by contractors and reporting on variations to work orders
opreparing and reviewing submissions and reports concerning the organisation's activities
ocollecting and analysing data associated with projects undertaken, and reporting on project outcomes
oreviewing and arranging new office accommodation
Occupations:
511111 Contract Administrator
511112 Program or Project Administrator

511111 CONTRACT ADMINISTRATOR

Alternative Title:
Contract Officer

Prepares, interprets, maintains, reviews and negotiates variations to contracts on behalf of an organisation.

In considering the requirements of r.2.72(10)(f), the Tribunal has taken into account the documents and information provided by Guanaco Pty Ltd to the then Department of Immigration and Border Protection (the Department). Notably, this information is now over two years old and does not give an insight into Guanaco Pty Ltd’s circumstances now at the time of decision, and Guanaco Pty Ltd has failed to provide up-to-date information to the Tribunal as invited. Nonetheless, despite this limitation, the Tribunal had regard to the information before it from when Guanco Pty Ltd lodged the application with the Department.
The nomination application lodged with the Department identifies the responsibilities and main duties of the role as consistent with the Position Description, which describes the tasks and responsibilities as consistent with the ANZSCO description of Contract Administrator (ANZSCO 511111).
Various documents were provided to the Department in support of the nomination application, including a genuineness submission which included the following information:
-    Detailed description of the tasks of the nominated position as listed in ANZSCO and as required by the applicant
-    The position is necessary to the operations of the business
-    The Contract Administrator may also negotiate additional work and quote the client for ad hoc work upon client requests during the gap check
-    The Contract Administrator will prepare a summary report of all the gap checks to the company seniors advising the current client status and sub-contractor performance
-    When providing one-off services to intra and interstate clients, the Contract Administrator will also organise temporary accommodation and travelling to sub-contractors
-    The position is new and is required as a result of business demands, market research and business expansion plans
Consistent with the reasoning of the delegate, as noted in the decision record provided by Guanaco Pty Ltd to Tribunal, the Tribunal considers the role of Contract Administrator is typically found in businesses large enough to support such a position, and whose business activities are of a complex nature, requiring the planning, negotiating and variation of complex contracts. As noted by the delegate, the most recently provided turnover figures for Guanaco Pty Ltd (provided for the standard business sponsor application), show annual turnover of $397,635 (year ended 30 June 2014). This is consistent with a relatively modest sized business. Whilst it is indicated that the intention is to expand the business, no evidence has been provided of new business clients, new contacts or expansion plans or projections. No evidence was provided to the Department, nor the Tribunal, supporting anticipated growth at the time of the application, or the current position or size of Guanaco Pty Ltd’s business now at the time of decision.
The described duties of the visa applicant in support of the application are said to be consistent with the ANZSCO occupational description for Contract Administrator. However, there is no information before the Tribunal as to how the nominee would actually undertake the tasks specified for the nominated occupation in the context of such a small business.
Having had regard to the ANZSCO description, the Tribunal considers that the role of Contract Administrator is typically associated with businesses undertaking a more extensive operation than the information before the Tribunal suggests is the case for the subject business operated by Guanaco Pty Ltd. Contract Administrator is a specialised role, as is supported by the indicative skill level in ANZSCO being commensurate with an associate degree, advanced diploma or diploma, suggestive of a specialised role with an employer of some size and substance and with not insignificant turnover.
Having had regard to all matters canvassed, including but not limited to the apparent modest business operations of Guanaco Pty Ltd, the Tribunal is not satisfied that the position associated with the nominated occupation of Contract Administrator is genuine at the time of its decision, as required by r.2.72(10)(f).
For these reasons the requirements of r.2.72(10)(f) are not met.
CONCLUSION
Accordingly, given its finding that Guanaco Pty Ltd does not meet r.2.72(10), which is an essential criterion for the nomination to be approved, it is unnecessary for the Tribunal to determine whether the remaining criteria set out in r.2.72 are met.
For the reasons given above, the Tribunal is not satisfied that Guanaco Pty Ltd 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.
Susan Trotter
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.