JC Management Australia Pty Ltd (Migration)

[2017] AATA 232

JC Management Australia Pty Ltd (Migration) [2017] AATA 232 (22 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JC Management Australia Pty Ltd

CASE NUMBER:  1511442

DIBP REFERENCE(S):  BCC2015/1606619

MEMBER:R. C. Titterton

DATE:22 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2017 at 12:16pm

CATCHWORDS

Migration – Employer Nomination Refusal – s 140GB – r 2.72 – Genuine nomination – Customer Service Manager – Position necessary for business operations – Analysis of tasks performed – Applicant’s trading income

LEGISLATION

Migration Act 1958, s 140GB
Migration Regulation 1994, Schedule 2 cl 457.223(4), r 2.72, 2.73

CASES

Cargo First Pty Ltd v Minister for Immigration and Border Protection[2015] FCCA 2091

Khan v Minister for Immigration[2016] FCCA 333

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 on 31 July 2015 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 applied for approval on 4 June 2015. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10(f) because she was not satisfied that the nominated occupation of Customer Service Manager was a genuine one.

4. The applicant appeared before the Tribunal on 8 November 2016 to give evidence and present arguments. The applicant was represented by its director, Mr Mukesh Regmi. The Tribunal also received oral evidence from Mr Yongjin Kwon, the applicant’s Customer Service Manager. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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).

Evidence

1. There was substantially more information before the Tribunal than there was before the delegate. Prior to the hearing, the Tribunal received financial reports, business activity statements (for the period 1 October 2015 to 28 April 2016 ) and ATO statements of the applicant, together with the applicant’s customer spread sheet, and Payroll Activity summaries. At the hearing, the Tribunal heard oral evident evidence from Mr Regmi and Mr Kwon, After the hearing, the Tribunal received further information including a job description, the nominees contract of employment, a statement of the nominees qualifications and experience, certificates of the applicant’s educational qualifications and a copy of the applicant sponsorship approval letter.

2. The additional information before the Tribunal included the most recent profit and loss statement for the year ended 30 June 2016 indicates that the applicant’s income is approximately $4.4 million, which after cost of sales is deducted leaves a gross profit from trading of approximately $930,000. Most of this profit is expended on the usual expenses of the business, including salary and wages of approximately $700,000. The business makes a modest profit before income tax.

3. The matters were discussed with the applicant’s director at the hearing. Mr Regmi confirmed that Mr Kwon presently fills the customer service manager position and liaises with external customers and other business partners on a daily basis. He reports in writing on a quarterly basis and provides instructions to each site supervisor to ensure service quality. At the hearing, the Tribunal had the opportunity to talk to Mr Kwon about the actual duties of the position. The Tribunal was satisfied that Mr Kwon’s work experience qualified him to be a Customer Service Manager for the applicant and that he currently carried out this role.

The nomination must comply with the prescribed process

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

1. The Tribunal is satisfied that the applicant company has nominated an occupation under s.140GB(1)(b) (r.2.73(1A)(a)) and has identified the person proposed to work in the occupation as a proposed applicant for a subclass 457 visa (r.2.73(1A)(b) and r.2.72(5) in relation to r.2.73(4A)(a)).

2. The Tribunal is satisfied the applicant has provided the name of the occupation, Customer Service Manager, and the location (Rydalmere) at which the occupation will be carried out: r.2.72(8A) in relation to r.2.73(4A)(a).

3. The Tribunal finds that the applicant has made the application in accordance with the approved internet form and paid the fee prescribed at the time of application (r.2.73(3),(5) & (9)).

4. The Tribunal accepts the applicant is a standard business sponsor and lawfully operates a business in Australia. The Department’s records indicate that the applicant was approved as a standard business sponsor from 29 July 2015 to 29 July 2020.

5. On the basis of the nomination form the Tribunal is satisfied that the nominating employer has provided the necessary certifications required by r.2.72(10)(e) (regarding tasks, qualifications and experience).

6. For these reasons the requirements of r.2.72(3) are met.

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

18.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.

1. The Tribunal finds, on the basis of the Department's electronic records, that the person making the nomination is a standard business sponsor.

2. For these reasons the requirements of r.2.72 (4) are met.

Identification of the nominee

21.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.

1. On the basis of the information provided in the nomination form the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation and that she is a subclass 457 visa applicant.

2. The Tribunal finds that r.2.72 (5) is satisfied.

Requirements for existing Subclass 457 visa holders

1. 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 this case, the Departmental records for the nominee Mr Kwon indicate that In this case, by reference to ‘movement records’, he was not and is not the holder of a Subclass 457 visa and therefore the requirements of r.2.72(6), (7A) and (10)(g) do not apply.

Information about the nominated occupation

25.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;

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

1. On the basis of information provided in the application, the Tribunal is satisfied that the applicant provided the relevant 6 digit ANZSCO code and specified the location for the position at which the nominated occupation is to be carried out.

2. For these reasons the requirements of r.2.72(8A) are met.

No adverse information known to Immigration

28.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 r.2.57(2) and (3).

1. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an 'associated person'.

2. For these reasons the requirements of r.2.72 (9) are met.

Specified occupation

1. Subclause 2.72 (10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 15/092. 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).

2. In relation to unit group 1492 Call or Contact Centre and Customer Service Managers and occupation 149212 ANZSCO provides as follows:

   UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS

   CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
   In Australia:

   AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

   . . .

   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Tasks Include:

   ·developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided

   ·ensuring operational efficiency within a call centre

   ·providing direction and feedback to team members and assisting with recruitment

   ·managing, motivating and developing staff providing customer services

   ·planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

   ·liaising with other organisational units, service agents and customers to identify and respond to customer expectations

   ·may work in a call centre

   Occupations:

   149211 Call or Contact Centre Manager
   149212 Customer Service Manager
   
   149211 CALL OR CONTACT CENTRE MANAGER

   Organises and controls the operations of a call or contact centre. May work in a call centre.

   Skill Level: 2

   
   149212 CUSTOMER SERVICE MANAGER
   Alternative Titles:

   Client Service Manager
   Service Manager

   Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.

   Skill Level: 2

3. Written and oral evidence before the Tribunal satisfies it that the proposed duties of the nominated position of Customer Service Manager are consistent with the ANZSCO tasks detailed above. Based on this evidence the Tribunal is satisfied that the tasks and duties of the nominated position are consistent with the tasks of the nominated occupation listed in ANZSCO.

4. For these reasons, the requirements of r.2.72(10)(aa) are met.

Terms and conditions of employment

35.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.

1. 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). ‘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.

2. 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).

3. 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). The amount of earnings currently specified by the instrument is $250,000.

4. The current Temporary Skilled Migration Income Threshold (TSMIT) for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028.

5. The evidence before the Tribunal contained in the Letter of Engagement signed and dated 1 June 2015, is that the visa applicant will be paid a base salary of $66,700 in addition to superannuation and other entitlements.

6. The Tribunal therefore finds that the annual earnings of the proposed visa holder under the terms of the Letter of Engagement and as defined by r.2.57A is $66,700 per annum, and the base rate of pay is also $66,700.

7. On the basis of the Letter of Engagement specifying a base salary of $66,700 which is under the threshold of $180,000 the Tribunal finds that the requirements in r.2.72(1)(c) and r.2.72(10)(cc) apply in this case.

8. There was no evidence that an Australian citizen or permanent resident was performing equivalent work at the same location. Therefore, the Tribunal has considered the methodology specified in IMMI 09/113.

9. The Tribunal is satisfied that the proposed terms and conditions of employment for the nominated position are no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing the equivalent work at the same location: r.2.72(10(c) is therefore satisfied.

Base rate of pay

45.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, which is currently $53,900.

1. 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.

2. 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).

3. The nominee’s annual earnings will be at least $66,700. As this amount exceeds the TSMIT, which is currently specified as $53,900, the Tribunal is satisfied that the requirements of r.2.72(10)(cc) are met.

Requisite certification

1. As part of the nomination, the applicant must certify various matters in writing: r. 2.72 (10)(e). The certification relates to the tasks of the position, the nominated occupation and the skills and qualifications of the visa holder, or proposed visa holder.

2. The applicant has made the relevant certifications in the nomination application, and on this basis the Tribunal is satisfied that the requirements of r. 2.72 (10)(e) are met.

Position must be genuine

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

1. Based on the information before him, the delegate was not satisfied that the nominated occupation of Customer Service Manager was necessary to the operations of the business. Accordingly, he was not satisfied that the nominated position was genuine.

2. The Tribunal notes that in Cargo First Pty Ltd v Minister for Immigration and Border Protection[2015] FCCA 2091, the Court considered the meaning of this subparagraph, as follows:

   ... What is required by sub-reg 2.72 (10)(f) is 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 second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as another. In light of this, the task of the Minister (and of the Tribunal 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.

3. More recently, the Federal Circuit Court in Khan v Minister for Immigration[2016] FCCA 333 considered what is required by cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations, which is worded identically to r.2.72(10)(f) in that it requires that the position associated with the nominated occupation is genuine. The Court, having referred to the judgment in Cargo First, held that:

   ... When considering whether the criterion specified in cl.457.223(4)(d)(ii) of Schedule 2 is satisfied, questions along the following lines may need to be addressed:
   a) What is the occupation that has been nominated...?
   b) How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?
   c) What are the tasks the applicant claims he or she has been employed or will be employed to perform?
   d) Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO?
   e) If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks he or she will be engaged to perform?

55.Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The Tribunal considers that there are no issues in relation to the genuineness of the position. The Tribunal has the benefit of hearing evidence from the applicant’s Director at the hearing, together with Mr Kwon who currently fills the position, and is satisfied that this is a genuine, ongoing position. As noted above, the applicant’s financial statements for 30 June 2016 state the applicant’s trading income for the year ended 30 June 2016 was approximately $4.4 million, which after cost of sales is deducted gives a gross profit from trading of approximately $930,000. Most of this profit is expended on the usual expenses of the business, including salary and wages of approximately $700,000. The Tribunal accepts these matters, and is satisfied that a Customer Service Manager is a necessary position for the applicant. The Tribunal is satisfied that the position is a genuine one.

1. For these reasons the requirements of r.2.72(10)(f) are met.

Employment under contract

57.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 an instrument. There is no current instrument for the purposes of this regulation.

1. A copy of an employment contract which set out the terms and conditions of employment was provided to the Department. The Tribunal is accordingly satisfied that the requirements of r.2.72(10)(h) are met.

Labour Market Testing

1. 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.

2. In this case, the nominated occupation is Customer Service Manager, ANZSCO 149212. This occupation is classified as Skill Level 2 in the ANZSCO dictionary. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In the circumstances, the skill and occupation exemption to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the requirement in s.140GBA.

3. For these reasons the requirements of s.140GBA are not applicable.

Work agreements

1. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72 (11), (12). The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.

Conclusion

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

DECISION

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

R. C. Titterton
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)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.

(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 that:

(i)       are provided; or

(ii)      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.