Hong Yuan Constructions Pty Ltd (Migration)
[2017] AATA 705
•8 May 2017
Hong Yuan Constructions Pty Ltd (Migration) [2017] AATA 705 (8 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Hong Yuan Constructions Pty Ltd
CASE NUMBER: 1616029
DIBP REFERENCE(S): BCC2016/1787076
MEMBER:Stavros Georgiadis
DATE:8 May 2017
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 08 May 2017 at 4:57pm
CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) visa applicant – Genuine position – Procurement Manager – Legislative changes – Removed from eligible skilled occupations list – Information provided after deadline – Entitlement to hearing lost – Invalid nominated occupation
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 349(2), 359(2), 359B, 360, 424B(4)
Migration Regulations 1994, r 2.72, r 2.73, r 4.18A, r 4.35B, Schedule 2, cl 2.72(10)(f)
CASES
Yang v MIAC [2010] FMCA 890
Hossam v MIBP [2016] FCA 1161
Sun v MIMIA [2004] FMCA 582
MIMIA v Sun (2005) 146 FCR 498
SZORU v MIAC [2011] FMCA 182
Giri v MIAC [2011] FMCA 282
SZEYJ v MIMIA [2005] FMCA 1718
SAAP v MIMIA [2005] 215 ALR 162
Hasran v MIAC [2010] 183 FCR 413
M v MIMA [2006] 155 FCR 333STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 September 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).
The applicant applied for approval on 19 May 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72(10)(f) because the delegate was not satisfied that the nominee visa applicant would be performing the full breadth of duties as defined in ANZSCO 133612 of a Procurement Manager for approval of the nomination.
The applicant was represented in relation to the review by its registered migration agent.
For reasons which are expounded below, the applicant has lost any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
On 23 March 2017 the Tribunal wrote to the applicant via its authorised representative setting out that the Tribunal is considering the application for review of a decision made not to approve the applicant’s business nomination under r.2.72 of the Regulations and invited the applicant to provide the following information in writing by 6 April 2017:
• Information to show that the nomination meets all of the criteria in regulation 2.72 at the time of the Tribunal’s decision. This includes but is not limited to the criterion which the Department’s delegate found was not satisfied.
Without limiting the information that the applicant might provide, the Tribunal invited the applicant to provide information relating to the nominated occupation of Procurement Manager (ANZSCO 133612).
On 6 April 2017 the applicant’s representative wrote to the Tribunal seeking an extension of time in which to provide the information requested, as follows:
“I refer to your letter of the 23rd March. I have dictated a response to the AAT but think that it is unlikely to reach the AAT by today. I seek an extension of the period allowed to respond to the [Tribunal by] COB on Thursday the 13th April.”
The Tribunal granted an extension of time to 21 April 2017. The letter also stated the following:
“If we do not receive the information by 21 April 2017, we may make a decision on the review without taking any further action to obtain the information. Hong Yuan Constructions Pty Ltd will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”
On 21 April 2017 the Tribunal again wrote to the applicant via its authorised representative as follows under the heading:
Changes to sc457 visa program – removal of certain skilled occupations.
I am writing in relation to your application for review in respect of a decision to refuse to approve a nomination application under s140GB of the Migration Act 1958.
I note that on 18 April 2017 the Minister announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a subclass 457 visa application. The Tribunal notes that the nominated occupation of Procurement Manager (ANZSCO 133612) has been removed from the list of eligible skilled occupations (CSOL) and therefore your nomination application may no longer meet the requirement in r.2.72(10)(aa) of the Migration Regulations 1994.
You are invited to provide submissions in relation this issue prior to 5 May 2017.”
On 21 April 2017 the Tribunal received written submissions from the applicant’s representative in respect of the further time to provide the information earlier requested as follows:
“On the 21st April we were to have responded to the AATs request for information in relation to this matter.
We were about to send an email and documents in relation to the matter but received an email from the AAT dated the 21st April 2017 inviting a response.
We sent an email to the AAT on 21st April 2017 indicating that in the circumstances we assumed that the AAT did not persist with the request for further information in this matter.
I have spoken to the employer and have been informed that the application for review of the employer in case 1616029 and the visa applicant in case 1618497 is to proceed with the applications for review and not withdraw the applications.
We will send the requested information about the 457 visa to the AAT tomorrow and will send a further submission regarding withdrawal of the applications by the 5th May.”
On 5 May 2017, the applicant wrote to the Tribunal and noted “that the list of occupations that can be nominated has changed and that the nomination must be current at the time of decision.” The letter confirmed that the visa applicant in the related matter 1618497 and the nominating employer in the present matter would not be withdrawing their applications for review stating: “The employer and the visa applicant are confident that the occupation will soon be restored to the list (possibly subject to a caveat) which will allow the application for review to be successful.” The Tribunal has proceeded to apply the relevant legal provisions in place at the time of its decision.
The issue regarding removal from the list of eligible skilled occupations and that the applicant’s nomination application may no longer meet the requirement in r.2.72(10)(aa) of the Regulations required a response (after allowing an extension) by 21 April 2017. The applicant through its representative made an incorrect assumption that the Tribunal did not persist with its request for further information in this matter. A response to that request under s.359(2) of the Act was not provided until 4:58pm on 5 May 2017.
The provisions of s.349(2) do not allow further time beyond the one extension, in this case the information originally due on 6 April 2017 being extended to 21 April 2017. The Tribunal notes the applicant’s representative may have relied or anticipated a further extension of time, but the legislation makes no provision for this. In fact, as set out below, additional time is limited to one extension only: Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010).
Under ss.359B(4)/424B(4), the Tribunal has a discretion to extend the period of time within which an applicant is to provide comments or a response where the invitation is to do so otherwise than at an interview. The Tribunal must not act unreasonably in the exercise of its discretion.[1] The discretion may be exercised whether or not the applicant asks for an extension, however, in practice as in this instance, this would usually be the case.
[1] See Hossam v MIBP [2016] FCA 1161 (Perry J, 27 September 2016) at [55] in which the Federal Court found that the Tribunal’s decision not to extend the time under s.359B(4) within which to respond to a s.359A invitation was not unreasonable in circumstances where the appellant, who had an authorised recipient, had not made an application for an extension of time and no reason was apparent on the information before the Tribunal as to why the appellant might not have been able to comment. The authorised recipient had replied to the invitation stating only that he had been unable to contact the appellant but that he could be overseas (although movement records showed the appellant as onshore). While the Tribunal had not given reasons in its decision specifically addressing its consideration of the discretion, the considerations referred to by the Court established that the Tribunal had not acted unreasonably.
From the language of rr.4.18A and 4.35B it is apparent that the Tribunal’s extension of time must be for the full prescribed extension period and cannot be for a shorter time of the Tribunal’s (or as in the present case, the applicant’s) choosing. This view has been endorsed by the Court in Sun v MIMIA.[2] Although a conflicting view was expressed in SZORU v MIAC,[3] this was arguably obiter and it is not certain that it would be followed by another court.
[2] Sun v MIMIA [2004] FMCA 582 (Walters FM, 10 September 2004) at [65] where the word ‘may’ in s.359B(4) (which corresponds to s.424B(4)) was interpreted to mean that the Tribunal had a discretion to extend time, but not to select its own extension period. The period has to be ‘no more and no less than the ‘prescribed period’. On appeal in MIMIA v Sun (2005) 146 FCR 498, the Full Court characterised the subsequent letter sent by the Tribunal differently, finding that the Tribunal did not by this letter purport to extend the time to respond to the first letter. As a result the Court held it was unnecessary to determine the question of whether an invalid extension of time adversely affected the validity of the original invitation, although aspects of the Full Court’s reasoning suggest that it agreed with the Federal Magistrate’s construction.
[3] [2011] FMCA 182 (Scarlett FM, 28 March 2011). The Court commented that if the Tribunal was of the belief that it did not have the power to grant the applicant’s request for an extension for a period of three days, this was clearly an error. However, the Court did not provide any reasoning for this conclusion, and did not refer to r.4.35B or consider Sun.
Relevantly, the Act only permits the Tribunal to extend the period of time for a further prescribed period after the initial period.[4] That is, the period of time may only be extended once.[5] Where the comments were to be made at an interview, the Tribunal has a discretion under ss.359B(5) to change the time of the interview, but that is not the case here as no interview had been scheduled as this was pending the receipt of the requested information.
[4] Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [32]. This conclusion is consistent with the language used in ss.359B(4) and 424B(4) which are in the singular, insofar as they refer ‘a prescribed further period’. Prior to Yang, it was unclear whether the Tribunal could extend the prescribed period more than once, but it now appears from Yang that the Tribunal may extend the prescribed period only once. Although this case was considering an invitation to provide information under s.359, the reasoning is equally applicable to invitations under s.359A.
[5] Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010). The conclusion that the period may only be extend once is evident in Lucev FM’s application of his findings to the facts: the applicant in that case had requested an extension of time in which to provide information so that he could sit a further IELTS test. Federal Magistrate Lucev held that even if the Tribunal had granted that extension, it could only be granted for a period of 28 days, and as such, any extended period would have expired before the applicant had sat the further test (at [32]).
Accordingly, the Tribunal finds that the applicant has failed to respond to an invitation under ss.359(2) of the Act within the prescribed period. Section 360(3) operates with the effect that the applicant is no longer entitled to attend any hearing and, in the case of a review under Part 5 of the Migration Act, the Tribunal is required to deny the applicant a hearing before it.[6] This remains the position given related Federal Court consideration.[7]
[6] Giri v MIAC [2011] FMCA 282 (Cameron FM, 28 April 2011) at [21] and [29]. His honour expressly disagreed with the contrary view taken by the Court in Kumar. The view in Giri is also consistent with the reasoning in SZEYJ v MIMIA [2005] FMCA 1718 (Lloyd-Jones FM, 22 November 2005) at [19]–[24] where, albeit in a case concerning the a review under Part 7 [protection] where there is no equivalent of s.363A, the Court held that the consequences of non-compliance with an invitation under ss.424/424A could arise at a later time than the issue of an invitation to attend a hearing. His Honour noted that the majority in SAAP v MIMIA (2005) 215 ALR 162 favoured an ambulatory rather than sequential approach to the construction of Part 7, Division 4 enabling a ss.424/424A invitation to be issued after an invitation to hearing is issued.
[7] See Hasran v MIAC (2010) 183 FCR 413, M v MIMA (2006) 155 FCR 333 and MIMIA v Sun (2005) 146 FCR 498.
In light of the circumstances, the Tribunal determined to make its decision on the review on the information before it without taking any further action. For the above reasons the applicant, Hong Yuan Constructions Pty Ltd, has lost any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
Specified occupation
The Tribunal has considered that on 18 April 2017 the Minister announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a subclass 457 visa application.
Sub clause 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 the relevant instrument IMMI 17/040. 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).
The new instrument, IMMI 17/040, took effect from 19 April 2017. It amends the former IMMI 16/059 by replacing the Skilled Occupation List (SOL) and Consolidated Sponsored Occupation List (CSOL) in Schedule1 and Schedule 2 of that instrument. In the Subclass 457 visa program, the changes affects live applications such that no visas can be granted and no nominations can be approved in respect of any of the removed occupations from 19 April 2017, and new caveats to certain occupations apply from this date. This affects current Subclass 457 visa applications as well as applications for approval of nominations for Subclass 457 visas, regardless of the date of application.
The Tribunal finds that by instrument IMMI 17/040 the nominated occupation of Procurement Manager (ANZSCO 133612) has been removed from the list of eligible skilled occupations and therefore, the applicant’s nomination application no longer meets a requirement in r.2.72(10)(aa) of the Regulations for the nominated occupation and its 6-digit code.
For these reasons the requirements of r.2.72(10)(aa) are not met.
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.
Stavros Georgiadis
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the person has listed on the nomination a person described in paragraph (6) (a); and
(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(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.
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