Harmony Ocean Pty Ltd (Migration)

[2023] AATA 1765

Harmony Ocean Pty Ltd (Migration) [2023] AATA 1765 (18 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Harmony Ocean Pty Ltd

REPRESENTATIVE:  Mr Andrew Wun Nam Au (MARN: 1686684)

CASE NUMBER:  1904638

HOME AFFAIRS REFERENCE(S):          BCC2017/4303161

MEMBER:Nicola Findson

DATE:18 April 2023

PLACE OF DECISION:  Perth

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 April 2023 at 8:38pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Chef – adverse position – sponsorship bar – reasonable to disregard – genuine position – size of the business – duties and responsibilities of the position – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 1.13A, 2.72, 2.73, 5.19

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 Home Affairs on 19 February 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 16 November 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 company trades in the Restaurant and Food Services industry in Northbridge, Western Australia.  The occupation nominated in this case is that of Chef (ANZSCO 351311).  The person identified for the position is Mr Cheuk Man Leung (the nominee), who lodged an application for a Subclass 457 visa in association with this nomination.

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

5. The applicant has sought review of this decision and is represented in relation to the review.

6. Mr Kwong Lung Kee, Director of the applicant company, appeared before the Tribunal on 8 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Cheuk Man Leung.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

7. The Tribunal exercised its discretion to hold a video hearing by Microsoft Teams.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of the matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted in this way. Mr Kee did not raise any concerns in relation to holding a video hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments

8. 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

9. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 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.

10. On 20 September 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, and invited it to provide updated and current information to demonstrate the relevant requirements of reg 2.72. The applicant responded by the extended due date, and provided to the Tribunal additional and updated material in support of its application, including but not limited to: ASIC and ABN records; current organisational structure chart; position description for the nominated position; and market rate information relevant to the nominated position.

11. During the review process, the Tribunal has also received a submission from the applicant, with additional updated material, including financial material (Income Statement and Balance Sheet for the year ended 30 June 2023); an updated contract of employment between the applicant and nominee dated 10 March 2023; ASIC information relating to the businesses operated by the applicant company; market salary research; and recruitment activities of the applicant company.

    The nomination must comply with the prescribed process

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

13. On the basis of information in the Department’s file, the Tribunal is satisfied of the following matters:

    · That the applicant nominated an occupation under s 140GB(1)(b), namely Chef (351311): reg 2.73(1A)(a);

    ·     That the applicant identified the nominee, Mr Cheuk Man Leung, the proposed applicant for a Subclass 457 visa, as the person who would work in the occupation: reg 2.73(1A)(b);

    ·     That the nomination was made using the approved form and fee: regs 2.73(2),(3), (5) and (9);

    ·     That the applicant identified the nominee, Mr Leung, in the nomination: regs 2.73(4)/(4A) and (5);

    ·     The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(4B); and

    · That the nomination included the location (Northbridge, Western Australia 6003) at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 351311): reg 2.72(4).

14. Given the above, the requirements of reg 2.72(3) are met.

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

15. 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.

16. Departmental records confirm that the applicant was most recently approved as a standard business sponsor on 1 November 2022, for a period of 5 years. There is no record of this sponsorship having been cancelled. The Tribunal is accordingly satisfied that at the time of this decision the applicant is a standard business sponsor.

17. For these reasons the requirements of reg 2.72(4) are met.

    Identification of the nominee

18. 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.

19. The Tribunal is satisfied that the applicant identified, in the nomination, the nominee (Mr Leung) as the proposed applicant for the visa who will work in the nominated occupation.

20. For these reasons the requirements of reg 2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

21. 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.

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

    Information about the nominated occupation

23. 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;

    ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 17/060; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

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

24. The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Chef (ANZSCO code 351311) and specified that the location at which the occupation is to be carried out is in Northbridge, Western Australia 6003).

25. For these reasons the requirements of reg 2.72(8A) are met.

    Certification relating to conduct under s 245AR(1)

26. 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.

27. On the basis of the responses in the nomination application form, the Tribunal is satisfied that the applicant has provided the required certification as part of the nomination.

28. The requirements of reg 2.72(8B) are therefore met.

    No adverse information known to Immigration

29. 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 regs 1.13A and 1.13B.

30. The information before the Tribunal is that on 11 September 2020, pursuant to s 140M(1) of the Act, the Department barred the applicant from sponsoring under the terms of the approved standard business sponsorship for 18 months, for the provision of false or misleading information, specifically time records, in respect of a temporary visa holder.

31. The Tribunal is satisfied on the evidence that the sanction imposed by the Department is relevant to the applicant’s suitability as a nominator, within the meaning of r 5.19.  The Tribunal accordingly finds that there is adverse information, as defined in r 1.13A, that is known to Immigration about the applicant.

32. As to whether it is reasonable to disregard this information, the Tribunal has considered the oral evidence of Mr Kee around the circumstances giving rise to the adverse finding and his view of it being a misunderstanding, and the Tribunal is satisfied that the applicant has taken steps to rectify and mitigate the possibility of future discrepancies in working hours of its overseas employees.  The Tribunal has considered the evidence before it that the applicant consulted Fair Work Australia about the concerns of the Department and received advice that no further action was required.  The Tribunal has considered the evidence of the applicant that the employment of the nominee is critical to its business operations and refusal would cause significant hardship to the business.  The Tribunal has also had regard to the fact that a new standard business sponsorship was approved on 1 November 2022, for a period of 5 years, which does appear to reflect that the adverse information was disregarded by the Department in respect of the sponsorship approval.

33. Having had regard to all of the circumstances of this matter, the Tribunal considers that it is reasonable to disregard the adverse information as the sponsorship bar ceased over a year ago, the nominator has taken steps to ensure compliance with its sponsorship obligations, and the applicant has since been approved as a standard business sponsor.

34. The requirements of reg 2.72(9) are therefore met.

    Specified occupation

35. Regulation 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 instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. 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: reg 2.72(10)(b).

36. The nominated occupation of Chef does correspond to an occupation in IMMI 17/060.

37. On the basis that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument, the requirements of reg 2.72(10)(aa) are met.

38. There is no requirement for the nomination to be supported by a specified organisation, the requirements of reg 2.72(10)(b) are therefore not applicable.

    Terms and conditions of employment

39. 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 (Cth).

40. 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: reg 2.57(3A). ‘Earnings’ is defined in reg 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.

41. 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: reg 2.72(10AA).

42. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: reg 2.72(10AB).

43. The nominee’s base rate of pay, as reflected in the most recent contract, is $70,000 per annum, exclusive of superannuation. The relevant instrument, IMMI 13/028, specifies the threshold at $250,000. As the nominee’s annual rate of earnings is less than this, the applicant is required to be assessed under reg 2.72(10)(c).

44. The nominee’s terms and conditions of employment are set out in his contract of employment. There is no other Australian citizen or permanent resident performing the same work in the same location. In the absence of an equivalent Australian employee, the Tribunal must use the methodology prescribed in Schedule A to legislative instrument IMMI 09/113, for the purposes of reg 2.72(10)(AA).

45. In considering that instrument, the Tribunal has had regard to evidence provided by the applicant of the salary range and terms and conditions for similar positions that have been advertised. The Tribunal has also considered the market rate of pay for an employee for the role of Chef from the Payscale website.  Having regard to this evidence the Tribunal is satisfied that the terms and conditions that apply to the position are equivalent to and therefore 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 (reg 2.72(10)(c)).

46. In addition, reg 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 instrument IMMI 13/028. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: reg 2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.

47. On the basis of the above evidence, the Tribunal is also satisfied that the base rate of pay that would be provided to the Australian equivalent employee is greater that the relevant TSMIT (reg 2.72(10)(cc)).

48. For these reasons the requirements of reg 2.72(10)(c) and reg 2.72(10)(cc) are met.

    Certification under reg 2.72(10)(e)

49. As part of the nomination, the applicant must certify various matters in writing: reg 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 instrument IMMI 17/080;

    ·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 IMMI 17/080.

50. Having regard to the nomination application, the Tribunal is satisfied that applicant has made the required certifications.

51. The requirements of reg 2.72(10)(e) are therefore met.

    Position must be genuine

52. 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.

53. The delegate was not satisfied that the position associated with the occupation was genuine. The delegate held concerns that the nominee would not regularly be performing a significant majority of the tasks of the nominated position. However, the Tribunal has formed the view, based on the evidence provided to it, that the position is genuine. 

54. The Tribunal has taken into account the nature of the business and the explanation as to why there is a genuine need for a Chef in the business.  The evidence before the Tribunal is that the applicant company operates the ‘Fortune Five Chinese Restaurant’, as well as the ‘Fortune Five Dim Sum and BBQ’ restaurant (which was purchased just prior to the time of nomination application), 6 days a week for lunch and dinner, in Northbridge, Western Australia. The Tribunal was told by Mr Kee that the nominated position was created to facilitate the applicant’s business expansion.  Mr Kee explained that his business partner and fellow Director, Mr Jianliang Zhong, performs the role of Head Chef and broadly oversees operations in the kitchens of both restaurants of the applicant company.  The Tribunal was told that the nominee carries out the duties and responsibilities of Chef for the ‘Fortune Five Chinese Restaurant’, and, in addition, the ‘Fortune Five Dim Sum and BBQ’ restaurant has its own full-time Chef.  Mr Kee gave evidence about the context of the nominated position; the duties and responsibilities of the position; and the importance of the position to the operations of the applicant business.  The oral evidence of Mr Kee, as well as the financial material before the Tribunal indicates that the applicant business, notwithstanding the Covid-19 pandemic, has continued to grow and prosper.

1. Having considered all of the evidence before it, including evidence that was not before the delegate at the time of their decision, the Tribunal accepts that the position is that of Chef as submitted.  The Tribunal has taken into account the size of the business, as demonstrated by the financial material before it. In addition, it has considered the duties and responsibilities of the position as demonstrated in the updated material, and is satisfied that they correspond substantially with those listed in the ANZSCO occupational dictionary for a Chef.  The Tribunal also observes that the nominee has been working for the nominator in the position since the end of 2017, and is considered to be extremely important to the success of the business. The Tribunal has considered the evidence before it and is satisfied that a Chef is identifiably and justifiably needed in the applicant business.

2. The Tribunal has also had regard to, and accepts, the evidence regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. 

3. The Tribunal finds, on the evidence before it, that the position is genuine, as required by reg 2.72(10)(a).

4. The contract of employment provides that the position is full-time for 38 hours per week. The nominee has been working with the applicant for several years and evidence before the Tribunal indicates that he has been engaged full-time throughout this period. The Tribunal accepts from the information provided, that the position is a full time one. Accordingly, it finds that reg 2.72(10)(b) is met.

5. For these reasons the requirements of reg 2.72(10) 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 instrument IMMI 13/067.

7. The Tribunal has received a copy of the most recent contract of employment signed by the applicant and the nominee on 10 March 2023.

8. For these reasons the requirements of reg 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): regs 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 the applicant, these must have been met.

10. As the applicant is not a party to a work agreement, the requirements of regs 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 ss 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. The Tribunal is satisfied the nominated occupation of Chef is a Skill Level 2 occupation and is exempt from labour market testing under the relevant instrument.

14. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s 140GBC(4)(b): IMMI 13/137. 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.

    Conclusion

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.

    Nicola Findson
    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.