HENLEY CONSTRUCTIONS PTY LTD (Migration)

[2018] AATA 5311

HENLEY CONSTRUCTIONS PTY LTD (Migration) [2018] AATA 5311 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HENLEY CONSTRUCTIONS PTY LTD

CASE NUMBER:  1620469

HOME AFFAIRS REFERENCE:                BCC2016/2441350

MEMBER:Lilly Mojsin

DATE:31 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review not to approve the nomination and substitutes a decision approving the nomination.

Statement made on 31 October 2018 at 2:19pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Building Associate – genuine position – consistency with core nature of business – construction of large scale buildings – role to be performed by the nominee – supervision of construction works – growth of business – capability and experience of nominee – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 209

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 November 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant nominator [applicant], Henley Constructions Pty Ltd, a company incorporated in Australia and first registered on 13 December 2006, carrying on business from a registered address at Camperdown NSW applied for approval on 22 July 2016. The application nominated the position of building construction supervisor within the occupation described as Building Associate, (ANZSCO  312112 ), the nominee being identified as Bhupinder Singh, a citizen of India.

3. The applicant obtained sponsorship approval from the Department on 3 September 2015, expiring 2 September 2020 and is lawfully carrying on business in Australia. The applicant describes itself as a project construction business, specialising in large scale construction projects.

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

5. The applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments.  The applicant nominated its Accounts Director, Jason Sarkis, to attend the hearing on behalf of the applicant. The applicant provided the Tribunal with its authority. 

6. The applicant was represented in relation to the review by its registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

8. The issue in the present review 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 r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

9. 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.

10. The applicant has provided the following documents to the Tribunal:

    ·Notice of assessment for Bhupinder Singh for 2016, 2017

    ·Group Certificates for Bhupinder Singh for 2018

    ·Tax Agent Portal

    ·Business Plan for the applicant

    ·2017 Financial Statements

    ·BAS 4 July 2017 to June 2018

    ·2 year Project Forecast

    ·pictures of current project located 2-8 Arthur Street Marrickville

    ·Duties and Responsibilities

    ·Company and Trade References

    ·Contract of Employment Bhupinder Singh

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

12. Regulation 2.73 sets out several criteria and the Tribunal finds as follows: –

13. The applicant has nominated an occupation under section 140 GB(1)(b) of the Act, as that of ANZSCO Building Associate (312112). The ANZSCO guide for Building Associate (312112) is a skill level 2 occupation, which requires an associate degree, advanced diploma or diploma or at least 3 years of relevant experience.

14. ANZSCO describes the occupation group which includes a Building Associate as a unit group comprising:

    Architectural, building and surveying technicians who perform technical functions to assist construction managers, architects and surveyors by supervising and inspecting construction sites, estimating time, costs and resources, inspecting plumbing work, and collecting and evaluating survey data and preparing maps and plans.

15. Tasks include supervising construction sites, and organising and coordinating the material and human resources as required.

16. The applicant has identified in the application the proposed applicant [nominee] for a subclass 457 visa, Bhupinder Singh, as a person who will work in the occupation.

17. The nomination in the application was made using the approved form and fee as set out in the statutory Instrument 13/063;

18. The applicant has identified the nominee in the application, who is a citizen of India .The applicant has provided the required certification that the applicant has not engaged in conduct that constitutes a contravention of section 245 AR (1) of the Act.

19. The applicant as a standard business sponsor has included the location (at Camperdown) at which the occupation will be carried out together with the name and 6 digit ANZSCO code for the occupation as referred to above.

20. The Tribunal finds r.2.72 (3) is met.

21. 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.

22. The applicant obtained sponsorship approval from the Department on 3 September 2015, expiring 2 September 2020. The Tribunal finds that the nominee has provided a copy of the Notice of Decision for Sponsorship Approval received from the Department, confirming that the applicant is a standard business sponsor.

23. The Tribunal finds r.2.72 (4) is met.

24. 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.

25. The director of the applicant is Patrick Sarkis, who names Bupinder Singh, the nominee who will work in the nominated occupation.

26. The Tribunal finds r.2.72 (5) is met.

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

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

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

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

    ·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in IMMI 17/057 in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

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

29. 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.

30. The Tribunal finds that the nomination includes a 6 digit ANZSCO code for the nominated occupation. The applicant has provided as part of the nomination the location at Camperdown in Sydney where the occupation is to be principally carried out by the nominee.

31. The requirements of r.2.72 (8A) are met.

32. 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.

33. The Tribunal finds that the applicant has certified in writing in the application that the applicant has not engaged in conduct in relation to the nomination that constitutes a contravention of the subsection 245AR(1) of the Act.

34. The Tribunal finds the requirement of r.2.72 (8B) is met.

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

36. The Tribunal has no information to suggest that there is any adverse information about the applicant or a person associated with the applicant. Therefore the Tribunal finds there is no adverse information known to immigration or the Tribunal in respect of the applicant or a person associated with the applicant.

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

38. Subclause 2.72(10)(aa) as it applies in this review, 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: r.2.72 (10)(b).

39. The Tribunal finds that the nominated occupation of building associate corresponds to an occupation and 6 digit code specified in the relevant instrument IMMI 17/060. The Tribunal further finds that the occupation is applicable to the person nominated in accordance with the instrument and that there is no requirement for the nomination of the occupation to be supported in writing to the Minister by a specified organisation.

40. The Tribunal finds the requirements of r.2.72 (10)(aa) are met.

41. 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.

42. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A).

43. 'Earnings' is defined in r.2.57A and includes the person's wages; amounts applied or dealt with in any way on the person's behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

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

45. 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 r.2.72 (10)(AB).

46. In support of the application, the applicant has provided evidence to the Tribunal that the nominee has been employed by the applicant in the occupation nominated since on or about 2016. The applicant states that on approval of issue of the visa subclass 457, the nominee will be employed on a full-time basis and subject to payment of a salary of $100,000 per annum. The applicant has provided a copy of an employment contract with the nominee to that effect.

47. The applicant has provided information about the occupation and salary range and comparable pay scales for the occupation.

48. The applicant's information is extracted from websites such as Seek.

49. Information provided by the applicant indicates a salary range from $100,000-$150,000 per annum plus super, for the occupation.

50. The Tribunal has had regard to the information provided by the applicant concerning the pay and conditions offered to the nominee, who has been in the occupation with the applicant since 2016. The Tribunal has had regard to the information concerning the pay and conditions to an Australian equivalent performing equivalent work at the same location as identified in the job search information made available by the applicant. The Tribunal finds that the applicant is offering the nominee pay and conditions which are within the threshold of those on offer in the marketplace to comparable Australian employees, and which although at the lower end of the scale, are no less favourable than an Australian equivalent, there being no substantial contrary evidence that the nominee's set of terms and conditions is any less favourable than the Australian equivalent.

51. The Tribunal finds the requirements of r.2.72 (10)(c) are met.

52. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028. The threshold specified in the instrument is $53,900

53. 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: r.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: r.2.57. The meaning of 'earnings' is provided in r.2.57A.

54. Likewise, the requirement in r.2.72 (10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028.r.2.72(10AB).

55. The Tribunal finds that the annual earnings of the nominee at $100 000 per annum are equal to or greater than those specified in the instrument.

56. The Tribunal finds that the annual earnings and base rate of pay under the terms and conditions of an equivalent Australian citizen or permanent resident would be in a range from $100,000-$150,000. The base rate of pay for the Australian equivalent is therefore also greater than TSMIT.

57. The Tribunal finds the requirements of r.2.72 (10)(cc) are met.

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

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;

    ·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 instrument IMMI 13/067; 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 IMMI 13/067; 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 17/060.

59. The Tribunal finds there is written certification by the applicant regarding the above matters. The applicant lawfully operates a business in Australia but not outside Australia and the relevant occupation has been identified by reference to its ANZSCO code and the relevant instrument.

60. The Tribunal finds the requirements of r.2.72 (10)(e) are met.

61. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

62. The delegate of the Departmental was not satisfied the nominated occupation is genuine. The delegate was of the view that although the business is growing, and the applicant has a number of substantial contracts, the nominated occupation has not been demonstrated to be consistent with the core nature of the business operated by the applicant.

63. In conducting this review and considering whether or not the position associated with the nominated occupation is genuine, the Tribunal has firstly regard to the description in the ANZSCO as set out above (the guide). The Tribunal accepts that the guide provides a reasonable basis for determining the description of the occupation and the tasks involved.

64. In Cargo First Pty Ltd v Minister for Immigration and Border Protection [2015] FCCA 2091 the Federal Circuit Court of Australia considering r.2.72 (10)( f), considered its application involved a “determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be”. The decision states that the proper task “on review of the Minister's decision is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation”.

65. The issue for the Tribunal is, on a case-by-case basis, considering whether the position is what it purports to be, what are the tasks and duties associated with the position nominated, and determining whether the nominee performs those tasks. It also involves making an assessment of the commensurate level of experience of the nominee to perform those tasks.

66. In completing the review the Tribunal reviewed the information provided by the applicant concerning the occupation and the position, the applicant’s evidence to the Tribunal and considered whether the nominee's tasks were substantially in line with the occupation as described and in accordance with the nominee's experience, and genuinely those of a building associate.

1. The nominee has been working for the applicant in the role since April 2016. The nominee attests to having worked in the construction industry in India in the same role. References have been provided by business associates of the applicant.

2. The Tribunal has also had regard to the details of the projects in which the applicant has engaged. This information is provided with the application. The applicant has provided information in a document received at the Tribunal hearing details the position described and tasks to be performed by the nominee.

3. Those tasks as described in the applicant's submission are the majority of tasks as set out in the ANZSCO guide.

4. The Tribunal is satisfied that the applicant is engaged in the construction of large scale buildings and due to the size and nature of the projects in which it is engaged it requires a building construction supervisor who can visit sites and carry out the necessary tasks to supervise the construction works.

5. The applicant's accountant Jason Sarkis has detailed the role to be performed by the nominee. This submission, and a letter of support by Patrick Sarkis, refers to the need for the role based on the growth of the business and the need for supervision on worksites.

6. The applicant has detailed the need for the position, as well as the capability and experience of the nominee. The applicant has provided information about the role undertaken by the applicant at different sites, including photographs of the nominee at the workplace inspecting works, supervising trades and dealing with contracted parties.

7. The Tribunal is satisfied that the position is genuine, that the occupation of building associate also described as building construction supervisor exists in the applicant's business. The Tribunal finds that the tasks associated with the occupation and the role to be performed by the nominee are those of a building associate as described in the ANZSCO guide.

8. The Tribunal finds the requirements of r.2.72 (10)(f) are met.

9. 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 a specified instrument. The Tribunal notes there is no current instrument that specifies the occupation of building associate as not requiring a written contract of employment.

10. The Tribunal finds that the nominee is employed under an employment contract, made 10 August 2015 and re-executed on 15 March 2018 a copy of which has been provided to the Minister and produced in writing with the information supporting the application.

11. The Tribunal finds the requirements of r.2.72 (10)(h) are met.

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

13. The Tribunal finds that the applicant is not a party to a work agreement, nor is the nominated occupation specified in any such work agreement.

14. The Tribunal finds the requirements of r.2.72 (11) and (12) are not applicable.

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

16. 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. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:

    ·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

17. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor's participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

18. IMMI 13/137 specifies occupations exempt from labour market testing. That includes occupations classified in the ANZSCO as skill level 2, for the purposes of paragraph 140 GBC (4)(b) of the Act. A relevant associate degree, advanced diploma or diploma covered by the AQF, and/or where the nominee has 3 years or more of relevant experience, will meet the criteria specified to exempt the occupation from the requirement for labour market testing.

19. The ANZSCO guide for building associate (312112) is a skill level 2 occupation, which requires an associate degree, advanced diploma or diploma or at least 3 years of relevant experience. The applicant has attested to details of the nominee's background and experience (which exceeds three years).

20. The Tribunal is satisfied that the nominated occupation is genuine and that the position of building associate is to be filled by the nominee.

21. The Tribunal finds that the applicant is exempt from labour market testing requirements as specified in the instrument IMMI 13/137.

22. The Tribunal is satisfied that the labour market testing requirements in s.140GBA are not applicable.

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

    DECISION

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

    Lilly Mojsin
    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.