Hasl PTY LTD (Migration) - [2021] AATA 1899

Hasl PTY LTD (Migration) [2021] AATA 1899 (29 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hasl PTY LTD
CASE NUMBER:  1828026
HOME AFFAIRS REFERENCE(S):          BCC2018/355274
MEMBER:Susan Trotter
DATE:29 May 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 29 May 2021 at 8:02pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – standard business sponsor stream – genuine position – no organisational information showing roles and responsibilities of employees – no response to tribunal’s invitation to provide current information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GBA, 140GB(2), 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1995 (Cth), rr 2.72(10)(f), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
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 [2014] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Parekh v Minister for Immigration and Citizenship [2007] FMCA 633 (Parekh)
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 Minister for Home Affairs on 20 September 2018 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).
Under the Act and Regulations, prior to 18 March 2018[1], there were three stages in sponsoring an employee from overseas in the Subclass 457 visa programme.
(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.
[1] 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.
The applicant applied for approval on 22 January 2018 nominating the occupation of Wall and Floor Tiler to be undertaken by Nathan Tyrone Hopkins Brabin (the nominee).
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.
The delegate decided not to approve the nomination on the basis that the applicant did not r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 24 September 2018.
On 9 April 2021, the Tribunal wrote to the applicant at their email address provided at the time of the application for review. The letter was issued pursuant to s.359(2) of the Act, inviting the applicant to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act.
The Tribunal did not receive any response to its letter of 9 April 2021, nor the information invited to be provided, within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicant failed to provide the information invited to be provided within the prescribed time, s.359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s comments/response or to obtain the information invited to be provided.
The Courts have confirmed that where an applicant fails to give information within the prescribed period in response to an invitation issued under s.359(2) of the Act, ss.359C(1), 360(3) and 363A of the Act preclude the Tribunal from offering an applicant a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.
Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 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 applicant has not provided the information invited to be provided, within the prescribed period set for this purpose.
The Tribunal has taken into account the fact that the applicant has been aware since 20 September 2018 of the reasons for the nomination application being refused and that the implications of not providing the information requested in the invitation from the Tribunal were set out in the letter of 9 April 2021.
In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. 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 the applicant more time in which to demonstrate that it meets the relevant criteria under r.2.72, including r.2.72(10)(f) 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 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). In addition, for nominations made from 23 November 2013, s 140GBA must be met.
Position must be genuine
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.
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 ‘being truly such; real; authentic; properly so called; sincere; free from pretence or affectation’.
The Tribunal notes that the departmental 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 the applicant 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 Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code 333411 in assessing whether the position associated with the nomination occupation, ‘Wall and Floor Tiler’, 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 paragraph 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.
This issue 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.
For the purposes of r.2.72(10)(f) in the current matter, the nominated occupation is that of a ‘Wall and Floor Tiler’ and ANZSCO relevantly states:
UNIT GROUP 3334 WALL AND FLOOR TILERS
WALL AND FLOOR TILERS lay ceramic, clay, slate, marble and glass tiles on external and internal walls and floors to provide protective and decorative finishes.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
o    examining plans, measuring and marking surfaces and laying out work
o    preparing wall and floor surfaces by removing old tiles, grout and adhesive, filling holes and cracks, and cleaning surfaces
o    spreading adhesive onto prepared surfaces and tiles, and setting tiles in position
o    using tile-cutting tools to cut and shape tiles needed for edges and corners, and around objects such as fittings and pipes
o    ensuring tiles are correctly aligned and spaced
o    grouting tiles, and cleaning and removing excess grout
o    applying waterproofing systems
o    may lay floors of granolithic, terrazzo, cement or similar composition
o    may lay coloured tiles in patterns to create mosaics
Occupation:
333411 Wall and Floor Tiler
333411 WALL AND FLOOR TILER
Lays ceramic, clay, slate, marble and glass tiles on external and internal walls and floors to provide protective and decorative finishes. Registration or licensing may be required.
Skill Level: 3
Specialisations:
Ceramic Tiler
Mosaic Tiler
The delegate noted in their decision (a copy of which was provided to the Tribunal by the applicant), that the applicant’s documents and information lodged with the nomination application indicated that the applicant operated a construction business but that no organisational structure had been provided to reflect the roles and responsibilities of employees within the business, no evidence was provided to show then current and future work or whether the nominated position was newly created or previously existed.
The Tribunal shares similar concerns however the applicant has not responded to the Tribunal’s invitation to provide information in order for the Tribunal to consider these matters. Further, the documents and information provided to the Department is from over three years ago and does not give an insight into the applicant’s circumstances now at the time of decision, The applicant has not provided up-to-date information to the Tribunal as invited such that the Tribunal is unable to be satisfied as required that now at the time of decision the position associated with the nominated occupation of Wall and Floor Tiler is genuine 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 the applicant 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 applicant meets the remaining criteria set out in r.2.72.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
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)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.