JACOB (Migration)

[2019] AATA 3681

JACOB (Migration) [2019] AATA 3681 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MIDHUN JACOB

CASE NUMBER:  1621639

DIBP REFERENCE(S):  BCC2016/529287

MEMBER:Alan McMurran

DATE:2 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 02 July 2019 at 11:34am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– standard business sponsor stream– nomination ceased – not the subject of an approved nomination – valid 375A Certificate – whether the applicant meets Public Interest Criterion 4020 (PIC 4020)– applicant has not submitted a bogus document or information –pending partner visa application– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 140GB, 375
Migration Regulations 1994, r 2.75, cls 457.223, 457.224

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 February 2016.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223 (4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223 (4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. On 15 December 2016, the delegate refused to grant the visa on the basis that cl.457.224 was not met because the applicant did not satisfy public interest criteria 4020 (1) (PIC 4020). That criterion requires there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a part 5-reviewable decision, a relevant assessing authority or a medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular, in relation to the application for the visa. The delegate found that on the material before the Department, “considering these concerns and conflicting information, it has been established that the applicant has provided misleading information and possible fraudulent documentation to the department.” The Tribunal has referred to those matters below.

5. On 17 December 2016, the applicant lodged this application for review. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

7. The applicant is a 33-year-old citizen of the Republic of India. The applicant was sponsored by Queensland Cyprus Supplies Pty. Ltd. (the nominator) for the occupation of Production Manager (Forestry) (ANZSCO 133511).

8. In support of the application, the applicant was relying upon (in part) a Bachelor of Technology in Mechanical (Lateral Entry) Engineering Certificate and a Diploma in Mechanical Engineering Certificate, both qualifications obtained in India.

9. The nominator was an approved standard business sponsor for a period of 5 years from 29 August 2016 to 29 August 2021. The nomination application was lodged on 31 August 2016 and approved by the Department on 10 October 2016. The nomination ceased on 10 October 2017.

10. On 18 March 2018, the 457 visa program was repealed and replaced with the Temporary Skill Shortage (TSS) visa program, and new Migration Regulations came into effect on the same day. As at 18 March 2018, the applicant was not the subject of an approved nomination which had not ceased.

11. A savings provision was included in the new Regulations to ensure that nominations made before 18 March 2018 and linked to a 457 visa application would not cease during the progress of an AAT review. The saving provisions however did not commence until 18 March 2018[1] and there is nothing to indicate in the drafting that the provision is to take effect prior to this date. In other words, the savings provision does not have a retrospective effect so as to apply to nominations that had already ceased before 18 March 2018.

    [1] Cl.6704(15)

12. Clause 2.75 (2) (b) of the Regulations provides that an approval of a nomination ceases 12 months from the day on which the nomination is approved. The purpose is clearly to provide a finite or endpoint in the process whereby nominations and related visa applications are concluded. The effect of regulation 2.75 is to end the approval of a nomination, which in this instance occurred on 1 October 2017. As there was no approved nomination in place in favour of the applicant as at 18 March 2018, the nominator’s rights having already been extinguished, the applicant is not the subject of an approved nomination where that approval has not ceased.

    375A Certificate

13. Section 375A of the Act provides as follows. Where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure not to disclose the document or information the subject of the certificate to any person other than the Member of the Tribunal constituted to the review.

14. The Department has placed on the file a certificate dated 20 February 2017. The certificate is signed with the delegate’s name and states that there is information in the Department’s records concerning the gathering and verification of its information and procedures, which it does not wish disclosed other than to the AAT. The Tribunal has reviewed the Department’s file and is satisfied that a credible reason has been provided for the issue of the certificate, which the Tribunal finds is valid.

15. In this instance, the Tribunal notes that the Department wrote to the applicant on 10 October 2016 before making its decision.[2] The Department’s letter states that:

    “Adverse information received

    The department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.”

    The letter continues:

    “As there is evidence suggesting that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, you may fail to satisfy PIC 4020 (1), with the result that this Visa application may be refused”.

    [2] DIBP file  BCC2016/529287

16. The Department letter provides particulars and the applicant was aware from the notification that concerns were raised about the applicant’s educational achievements and documentation corroborating his academic outcomes. The Tribunal deals with those concerns in its reasons below concerning PIC 4020 (1).

17. The Tribunal finds in this instance that the certificate, although valid, has no bearing on the deliberations of the Tribunal concerning the PIC 4020 issue or the outcome in terms of the visa application, for reason that the internal operations of the Department as to its “information gathering and verification procedures” are not relevant to findings the Tribunal makes concerning the nomination process as set out in the Act and Regulations, and subsequently the allegations in terms of the PIC 4020 criterion (dealt with below), especially in circumstances where the applicant is aware from the Department’s letter of the nature of the adverse information received by the Department and to which the applicant has responded with detailed submissions (referred to below). The Tribunal has had careful regard to the applicant’s submissions.

    359A Letter from the Tribunal

18. On 9 February 2017, the applicant provided detailed submissions to the Department in a letter from the representative. The Tribunal received a copy of that letter together with its attachments for its case file.[3]

    [3] T case file ff 19-47.

19. The matter remained with the Tribunal for constitution in the period from February 2017 until March 2019 in which period there was no further communication with the applicant.

20. On 19 March 2019, the Tribunal wrote to the applicant under section 359A of the Act. The letter was an invitation to comment or respond to information, and set out a request for the applicant to provide information as follows:

    “The particulars of the information are:

    ·It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that you are the subject of a nomination by a standard business sponsor approved under section 140GB of the Act.

    ·A review of your file and Departmental records suggests that you are not the subject of an approved nomination by a standard business sponsor because the nomination previously approved for Queensland Cyprus Supplies Pty Ltd in respect of you expired on 10 October 2017

    ·The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.”

21. The letter requested that the applicant provide comments or response to the Tribunal by 2 April 2019. The letter invited the applicant to seek an extension of time if required, subject to receiving that request also by 2 April 2019, and stating the reason why an extension was required.

22. The applicant’s representative responded by email letter on 12 April 2019. In the letter the agent says “We respectfully request additional time to take our client’s further instructions”.

23. On 16 April 2019, the Tribunal sent a letter in reply. The letter stated:

    “In our letter of 19 March 2019, we invited you to comment on information by 2 April 2019, and advised that any request for an extension of time to provide comments or response must also be received by 2 April 2019. We did not receive your request for an extension of time until 12 April 2019.

    We also advised that if we did not receive the comments or response within the period allowed or as extended when they make a decision on the review without taking any further action to obtain the comments or response, and you would lose any entitlement you might otherwise have had under the migration act 1958 to appear before us to give evidence and present arguments. As you did not provide the comments or response or request an extension of time to comment on the information by 2 April 2019, you appear to have lost your right to a hearing (however, this will need to be determined by the member who is constituted your matter).

24. On 18 April 2019, the applicant’s representative responded by letter, noting the following:

    “The above review applicant finds himself in a compromised position due to a confluence of errors by an earlier decision of the delegate. We wish to outline his current predicament.

    The previously approved nomination with Queensland Cyprus Supplies Pty Ltd expired on 10 October 2017.

    The applicant’s 457 visa was refused due to concerns by the delegate about the bona fides of earlier documentation surrounding education qualifications. The legitimacy of the educational qualifications has since been established and submitted to the Department. In the interim, despite a request for urgent processing the nomination elapsed.

    The intimation that there was a bogus document has created further issues in terms of the review applicant’s current offshore partner visa application. Our concern is the Public Interest Criterion 4020 has the potential to jeopardise or infect a Partner visa currently on foot.

    The review applicant’s proven education credentials counter any suggestion that the applicant ever intended to deceive or mislead the delegate in terms of his educational background. The concern was levelled more at the locality of the campus rather than the institution where the qualification was attained. The applicant has submitted extensive evidence to the Department to substantiate his educational background and to support his initial claim.

    Further, the review applicant has an Australian citizen child who will be adversely affected at the prospect of a visa refusal and therefore this raises compelling and compassionate circumstances that justify the granting of the visa.

    The applicant requests the AAT waiver PIC 4020 in light of the above circumstances.”[4]

    [4] T case file at ff 59-60

25. On 28 May 2019, the Tribunal sent a hearing invitation to the applicant. A hearing was fixed for 26 June 2019.

26. On 18 June 2019, the Tribunal wrote to the applicant rescinding the hearing invitation, stating as follows:

    “Your case was allocated to a Member on 30 May 2019. They have determined that you have lost your entitlement to a hearing. A decision will be made on the available evidence and documents before the Tribunal. If you wish to make any further submissions please do so by 24 June 2019, after which time the Tribunal will make a decision on the evidence before it.”

27. On 24 June 2019, the applicant wrote to the Tribunal stating:

    “We wish to advise that our client’s main concern is the immigration Department’s intimation that the documentation and claims of Indian study at JRNRV University were bogus or misleading.

    Presently, the review applicant has a partner visa application before the Department. The review applicant is concerned that PIC 4020 has the potential to compromise or infect his current Partner visa application.

    We request the Tribunal to decide on the bona fides of the review applicant’s academic credentials and determine whether there was ever any evidence given, or caused to be given, a bogus document or information that is false or misleading in relation to our client’s earlier visa application.

    Our previous submissions and accompanying documented evidence strongly support the review applicant’s assertion that all academic qualifications acquired in India were genuine and attained through the legitimate channels”.

28. The Tribunal has dealt with these submissions below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. The threshold issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223 (4)(a).

30. Clause 457.223 (4) (a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

31. In the present case, the department’s records reveal that the previously approved nomination in favour of the applicant by the nominator expired on 10 October 2017.

32. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

    Requirement for an approved nomination

33. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

34. As referred to above, on 18 March 2018 the 457 visa program was repealed. As the applicant’s nomination had expired on 10 October 2017, there was no current approved nomination before the Department, or the Tribunal. The nomination had expired by virtue of clause 2.75 (2)(b) of the Regulations, well before the repeal provisions were enacted. Without a savings provision referring to a nomination which had already expired as at 18 March 2018, the applicant cannot meet the subclause 457.223 (4(a).

35. For these reasons the requirements of cl.457.223 (4)(a) are not met.

36. Ordinarily, that would be sufficient to dispose of the application. The Tribunal however has now been requested by the applicant for the reasons referred to above, to deal with the PIC 4020 issue, raised by the Department in its refusal.

37. The Tribunal is mindful of its obligations to deal with all matters before it as raised by the application and in particular in this instance by the applicant’s submission in its letter in response to the Tribunal as requested on 24 June 2019.[5] The Tribunal proceeds to deal with that issue below.

    [5] T case file at f 72

    PIC 4020

38. The issue raised by the Department delegate is whether the applicant meets Public Interest Criterion 4020 (PIC 4020), as required by cl.457.224 for the grant of the visa.

39. Broadly speaking, PIC 4020 requires that:

    ·There is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

    ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

40. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

41. In its letter on 10 October 2016, the Department set out in detail the particulars of its concerns. In summary, those concerns noted:

    §Documents submitted to the Australian high commission in New Delhi for verification of authenticity;

    §That the applicant had been a student studying at Calicut, Kerala in the South of India from December 2009 until December 2012; enquiry showed this was a software training Institute and not a recognised college or university.

    §The degree relied on by the applicant was not recognised by the Indian University Grants Commission (UGC);

    §That it was implausible for the applicant to be pursuing a Bachelor of Technology in Mechanical Engineering in the period 2009 to 2013 in Northern India at Rajasthan, while at the same time enrolled in a Bachelor of Technology (Mechanical Engineering) while living at Kerala in Southern India, some 2,500kms distant; in the words of the delegate, “it is implausible that the applicant was pursuing the same level and degree courses from two different places at the same time”.[6]

    §That the applicant was not enrolled at the JRNRV University located in Rajasthan, but rather in a distance education program at Kerala not recognised by the UGC;

    §The applicant’s evidence confirms he was a resident at Kerala;

    §The Australian Embassy post provided the above information to the Department, and upon which the Department based its conclusions.

    [6] DIBP file at f 117

42. According to the Department file, the respondent replied to the adverse information letter of 10 October 2016, before the Department made its decision on 15 December 2016. The applicant’s reply by email on 1 November 2016 is referred to in the Department’s reasons[7], but in the words of the decision record did “not provide any evidence that the information provided by the Australian Embassy in New Delhi was incorrect”.

    [7] ibid at f 118

1. The applicant’s more detailed response was not sent until his letter from an agent (Tonio Lawyers) on 9 February 2017.[8] The Department did not have an opportunity to consider that information before making its decision in December 2016, and considered only what had already been provided by the applicant[9].

   [8] ibid at f 47

   [9] ibid at ff 24-68

2. The Department delegate formed the view the evidence established conflicting information, both as to the course studied by the applicant via remote-learning or distance education, and his physical location which was off-campus. The primary thrust of the decision was that the course in support of the applicant’s qualifications was not a UGC recognised degree (being distance education or “online programs”[10]), and that the applicant could not have been studying for the degree whilst living and working at Kerala, some 2,500kms distant from the university.

   [10] ibid at f 119 (Decision at p3)

3. The Department relied almost entirely upon the responses from the Australian Embassy post and found that the information provided by the applicant was either misleading or misrepresenting the applicant’s true position, and/or the information and the documents provided by the applicant “are non-genuine”.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

4. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

5. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

6. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception (or “purposeful falsity”) by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42 (Trivedi). In that case, Buchanan J states “the accusation potentially imports some element of knowledge or intention on somebody’s part”.[11]

   What is the “bogus document” alleged?

   [11] Trivedi v MIBP [2014] FCAFC 42

7. The Department decision does not specify a particular “bogus document”, but relies upon the totality of the information provided as being “non-genuine and possibly fraudulent”.

8. The Tribunal has paid careful regard to the detailed submissions from the representative on 9 February 2017[12] and in particular the responses to the issue concerning the Department about the documentation.

   [12] T case file at f 46.

9. Firstly, the submission refers to the UGC, and the fact the UGC provides “provisional approval for courses under distance mode by JRNRV University and that the UGC is not required to make any separate approvals for the distance education program.”

10. The submission attaches a letter from the UGC to the JRNRV Vice-Chancellor dated 13 November 2007 which states that “I am directed to inform you that the Commission has noted that DEC, a statutory council to regulate distance education, has already conveyed the approval (ex post facto as well provisional approval for the year 2007-2008) to certain courses run by your University under distance mode based on the approval of the UGC-AICTE-DEC Joint Committee. Therefore no separate approval from UGC is required for the same. You are requested to send list of the courses (year -wise) run by the Deemed University under distance mode as approved by the Joint Committee.”

11. The submission attaches a further letter dated 6 November 2003 from the UGC[13] which states the “B. Tech. (Civil Engineering Course) both are recognised by UGC”, and a copy of the UGC Regulations, 1985 which state “regarding the Minimum Standards of Instructions for the Grant of the First Degree through Non-formal/Distance Education” and which “apply to every university established or incorporated by or under a Central Act, Provincial Act or of a Section 2 of the University Grants Commission Act, 1956 and every institution deemed to be University under section 3 of the said Act.”

    [13] ibid at f 43

12. Further attached to the submission[14] is a requirement provided from the JRNRV University, for the creation of “study centres” which are used for remote study or distance education with requirements such as audio video facilities, hardware and software. These are considered to be “norms” for the engineering program. A further letter from JRNRV University attached and dated 3 December 2007[15] addressed to the UGC confirms “that there are no separate approval is needed/require from the University Grants Commission for the distance education programs”.

    [14] ibid at f 41

    [15] ibid at f 39

13. The submission further goes on to explain that the reference “NIET” is a common generic code for an authorised study centre of JRVD University, from which the applicant obtained his qualifications based on that university’s distance education program, as approved by UGC. The applicant’s explanation is that he was not issued with two different degrees obtained simultaneously, but rather “he received a certificate from NIET which specifically refers to the completion of his degree at JRNRV University.” [16]The submission concludes that the provision of these certificates from NIET was a document referencing completion of the applicant’s university degree by distance education. The applicant submits there was no evidence of any “counterfeit certificates or degrees” submitted by the applicant to the Department in support of his application.

    [16] Ibid at f 46

14. The applicant further points out that the applicant did not claim to have pursued the same degree in two different places simultaneously. That is supported by the evidence provided of the applicant’s enrolment in the distance education B. Tech course in Mechanical Engineering, offered by JRNRV in the period 2009-2012. It was a legitimate and registered course with provision for distance learning established by the University, and approved by the relevant authority (UGC).

15. The Tribunal has carefully reviewed this evidence in the applicant’s submission and the documents provided by the applicant. The Tribunal finds there is no reason to discredit that documentation or any reasonable basis on which it could be concluded the documentation is fraudulent or counterfeit.

16. On the basis of the submission and the findings in respect of the documentation, the Tribunal is satisfied that the applicant completed his degree courses off-campus as alleged and obtained qualifications from the JRNRV University.

17. In making this finding, the Tribunal is mindful that the Department did not have the submissions or all the documentation referred to above available to it at the time of its decision, and there is no evidence that the Australian Embassy in New Delhi made reference to any of that documentation in providing information to the Department. It would be reasonable to expect that if the Australian embassy having regard to the documentation, had concerns or raised issues as to its validity, those issues would have been made known to the Department (and then to the applicant).

18. It seems however that the overseas post which advised the Department was relying on the “implausible” circumstance that the applicant could pursue two university degrees in two geographically remote and different places at the same time, and ignoring distance education, on the basis the UGC had not authorised distance learning education for the degree specified. On the evidence provided by the applicant, that is clearly not the case. The logical and reasonable explanation on the facts is that the applicant was a distance –education student enrolled at the University in an approved course.

19. In the circumstances, the Tribunal finds that there is no reasonable justification or basis for a finding that the applicant has provided bogus documents to the Department (or the Tribunal) or provided information that is misleading or deceptive or fraudulent. It is evident from the information supplied that the applicant completed his degree by distance education from Kerala, and in circumstances where the distance learning was approved by the relevant Indian University Authority (UGC).

20. As the Tribunal finds that no misleading information or fraudulent documentation was provided by the applicant, the issue raised by PIC 4020(1) as to the provision of bogus documents does not arise. The Tribunal is satisfied that the actions of the applicant have not been “revealed as false, in the purposely untrue sense of that term”[17] and the Tribunal finds that it cannot point to any misrepresentation or action on the part of the applicant which might reasonably provide an element of fraud or deception (or “purposeful falsity”).[18]

    [17] Trivedi v MIBP [2014] FCAFC 42, per Buchanan J at par 32.

    [18] ibid at par 32

21. For these reasons, the Tribunal finds the applicant has not submitted a bogus document or information that is false or misleading in a material particular and the criterion in PIC 4020 (1) is met.

    Summary

22. The Tribunal has found that the applicant does not meet the requirements for an approved nomination as set out above.

23. In relation to the applicant’s submission and request, the Tribunal has dealt with that matter as set out above and further found that the concerns and findings made by the Department in respect of PIC 4020(1) are not made out, and that the applicant meets that requirement.

24. Overall however, the application must fail for want of an approved nomination.

25. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

26. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Alan McMurran
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.