K & B Family Co Pty Ltd (Migration)

[2019] AATA 6277

K & B Family Co Pty Ltd (Migration) [2019] AATA 6277 (10 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  K & B Family Co Pty Ltd

CASE NUMBER:  1724297

HOME AFFAIRS REFERENCE(S):          BCC2017/1147422

MEMBER:George Hallwood

DATE:10 October 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 10 October 2019 at 3:24pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – nomination criteria do not apply to a position in a limited service restaurant – operations of café, the subject of the nomination – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(aa), 2.73

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 September 2017 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 24 March 2017+. 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 r.2.72(10)(aa) because the delegate was not satisfied the nominated occupation is not in a “limited service restaurant”.

4. Mr Tri An (Aaron) Ho, Director of K&B Family Co Pty Ltd (K&B), appeared before the Tribunal on 26 September 2019 to give evidence and present arguments on behalf of the applicant. This was a combined hearing with Tribunal case number 1726495 in relation to Mrs Thi Thu Hang Nguyen (a primary applicant for a subclass 457 visa), Mr Trang Nguyen Do, and Miss Gia Han Do (secondary applicants).

5. In this case the subclass 457 visa applicant is outside Australia and their application was lodged by the nominator.

6. Mrs Nguyen provided limited evidence as the telephone connection with her in Vietnam terminated part way into the hearing. Mr Do and Miss Do were also on the telephone line from Vietnam but provided no evidence. The Tribunal determined not to attempt to reconnect with Mrs Nguyen and her family as the evidence needed to determine her application depends largely on the approval or refusal of the nomination. The Tribunal undertook to recontact Mrs Nguyen if any further evidence was required in relation to this hearing. No further evidence was considered necessary in order to come to a decision.

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

8. At the hearing the applicant identified an administrative error with the contract of employment and sought time to rectify the error. The Tribunal questioned both the applicant and the nominee and they expressed the same belief of the meaning of the contract. As the Tribunal was satisfied it had been a genuine error the applicant was given until 3 October 2019 to rectify the mistake. This was done within the timeframe given and the decision has been made taking into account that further evidence.

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

The nomination must comply with the prescribed process

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

2. The Tribunal has had regard to the material provided and oral evidence and is satisfied that the application was compliant with the process set out in r.2.73:

   ·K&B nominated an occupation, “Café or Restaurant Manager” ANZSCO 141111, under s.140GB(1)(b): r.2.73(1A)(a);

   ·K&B identified Mrs Thi Thu Hang Nguyen as the primary applicant in the nomination as an applicant for a Subclass 457 visa and as the person who will work in the occupation: r.2.73(1A)(b);

   ·The nomination was made using the approved form and fee IMMI 13/063: r.2.73(2), (3), (5) & (9);

   ·K&B has identified the nominee in the nomination: r.2.73(4A) and r.2.72(5); and has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and

   ·The nomination includes the location at which the occupation will be carried out, Maylands Western Australia, and the name “Café and Restaurant Manager”, and 6 digit ANZSCO code 141111, as the applicant is a standard business sponsor; as well as providing the relevant certifications mentioned in r.2.72(10): r.2.73(4A).

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

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

1. 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.

2. Evidence provided demonstrates K&B is a standard business sponsor approved on 19 September 2016 and that approval is in effect until 19 September 2021.

3. For this reason the requirements of r.2.72(4) are met.

Identification of the nominee

1. 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.

2. Mrs Thi Thu Hang Nguyen has been identified by the sponsor in the nomination as the subclass 457 visa applicant who will work in the nominated occupation as a Café or Restaurant Manager.

3. For these reasons the requirements of r.2.72(5) are met.

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.

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

Information about the nominated occupation

1. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

   ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

   ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

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

2. As part of the nomination, the applicant provided the name of the occupation “Café or Restaurant Manager”, the corresponding ANZCO code 141111 and the location at which the nominated occupation is to be carried out “Maylands Western Australia”. Accordingly, the Tribunal is satisfied that the required information has been provided in the nomination.

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

Certification relating to conduct under s.245AR(1)

1. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

2. The Tribunal is satisfied based on the application information that the required certification has been provided in the nomination. 

3. For these reasons the requirements of r.2.72(8B) are met.

No adverse information known to Immigration

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

2. There is no evidence before the Tribunal to indicate that adverse information is known to Immigration about the applicant or an associated person.

3. For this reason 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 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

2. The nominated occupation, “Café or Restaurant Manager” and its 6-digit ANZSCO code, 141111, correspond to an occupation and 6-digit code specified in the relevant instrument. The nominated occupation is subject to criteria, described in item 8 of section 8 of the instrument IMMI 17/060 which make the occupation inapplicable. In this case the criterion at item 8 is that “the position is in a limited service restaurant”.

3. Limited service restaurant is defined in section 4 of the instrument:

   limited service restaurant includes the following:

   (a) a fast food or takeaway food service;
   (b) a fast casual restaurant;
   (c) a drinking establishment that offers only a limited food service;
   (d) a limited service cafe, including a coffee shop or mall cafe;
   (e) a limited service pizza restaurant.

4. In evidence Mr Ho described the Mrs S Café (the trading name of K&B) as one of the best in Perth. He took over the business in 2013 and has had six years of trading.

5. Mrs S Café trades seven days a week from 7am to 3pm Monday to Friday and from 8am to 3pm on weekends. It is located on a street corner and has seating indoors and outdoors for up to 60 people.

6. During the warmer weather when they can use the outdoor space, they have queues of patrons waiting for tables on weekends between 8.30am and 10am. Mrs S Café serves breakfast, brunch, lunch and coffees with their baked goods winning them awards and good reviews from patrons. The café is not licenced.

7. Many people are waited on at their tables and some choose to go to the counter because there is a selection of famous cakes baked daily in house. Mr Ho stated that 85% of the food is made fresh at the café’s own kitchen.

8. The Tribunal is satisfied that Mrs S Café is not a limited service restaurant.

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

10. There is no requirement for the nomination to be supported by a specified organisation. For this reason the requirements of r.2.72(10)(b) are not applicable.

Terms and conditions of employment

1. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.

2. 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.

3. 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).

4. 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).

5. Based on the evidence before the Tribunal the nominated position is to be filled by the nominee and there is no  Australian citizen performing equivalent work at the same location. The Tribunal is satisfied that:

   ·The nominees earnings are not equal to or greater than the $250,000 specified in the written instrument IMMI 13/028.

   ·The terms and conditions specified in the employment contract and confirmed in oral evidence that the terms and conditions have been determined by reference to job advertisements and industry expectations for similar roles and employee experience and adhere to all relevant legislation including the Fair Work Act 2009 and National Employment Standards;

   ·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;

   ·The nominee’s contract contains hours of work, leave entitlements and salary together with other conditions. The nominee’s base salary for the position is $56,000 per annum plus 9.5% superannuation.

6. For these reasons the requirements of r.2.72(10)(c) are met.

Base rate of pay

1. 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 was relevantly $53,900.

2. 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.

3. 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) which was relevantly $250,000.

For the nominee:

• the nominee’s annual earnings are $56,000; and

• the nominee’s annual earnings are not equal to or greater than the income threshold specified in the instrument for r.2.72(10AB) being $250,000.

• The nominee’s annual earnings are greater than the TSMIT being $53,900; and

For the Australian equivalent:

• there is no set rate of pay for café or restaurant managers so the method of determining terms and conditions that would be provided to an Australian citizen or an Australian permanent resident set out in IMMI 09/113: r2.72(10AA) was applied by the Tribunal;

• while there is a Restaurant Industry Award that includes food and beverage supervisors I am satisfied this does not match the ANZSCO classification of Café or Restaurant Manager;

• there is no award instrument applicable to Australian citizens or Australian permanent residents in similar workplaces and relevant to this occupation;

• there is no Australian citizen or permanent resident performing equivalent work at Mrs S Café;

• evidence provided to the Tribunal by the applicant including from internet sites “payscale” and “seek” indicates the  base rate of pay for the Australian equivalent is $56,000 and this is greater than the TSMIT.

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

Certification under r.2.72(10)(e)

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

   ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO;

   ·the nominated occupation is with a business, or an associated entity, of the applicant; and

   ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.

2. The Tribunal is satisfied that the relevant certifications have been made in the nomination form.

3. For these reasons the requirements of r.2.72(10)(e) are met.

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

2. A range of documents relating to the applicant were provided to the Tribunal prior to the hearing including the current company extract from ASIC, a copy of the 2018 financial report, an organisation chart, and a job description.

3. In evidence Mr Ho described the business as a thriving breakfast and lunch café that is well known throughout Perth for its quality food and cakes.

4. The business employs 11 staff and in 2018 had a turnover of almost a million dollars and a net profit before tax of about one hundred thousand dollars. Mr Ho believes the business can grow further but he is currently working very long hours and has a young family. If he is able to fill the Café Manager role with the right person he believes he can spend more time with his family and grow the business.

5. The role Mr Ho described was consistent with the job description provided for the position.

6. Having qualitatively assessed the position and comparing this with the occupation nominated the Tribunal is satisfied that the person occupying the position is in fact required to undertake ‘tasks’ of the kind set forth in ANZSCO, and the ‘tasks’ required to be undertaken include a significant majority of the tasks set forth in ANZSCO.

7. The Tribunal is satisfied that the position associated with the nominated occupation is genuine, it is a skilled occupation and is genuinely needed by the nominating employer

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

Employment under contract

1. 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 the instrument.

2. The applicant has provided a copy of the signed contract of employment dated 30 September 2019 in respect of the nominee.

3. For this reason the requirements of r.2.72(10)(h) are met.

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). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.

1. As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.

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. The ANZSCO classification of a Café or Restaurant Manager requires an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or at least three years of relevant experience for the nominated position and the relevant qualification is not considered protected under legislation. It is exempt from labour market testing as set out in IMMI 13/137 and s.140GBC(3).

3. Mrs Nguyen has ten years of relevant experience for the nominated position and the relevant experience for the nominated position is not considered protected under the legislation.

4. For these reasons, the labour market testing requirements in s.140GBA are not applicable.

Concluding paragraphs

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.

George Hallwood
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

(1)This regulation applies to a person who is:

(a)is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

(iii) a party to a work agreement (other than a Minister);

(iv) a party to negotiations to a work agreement (other than a Minister); and

(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)The Minister is satisfied that the person is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(7A)In addition to subregulation (6):

(a)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

(b)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

(b)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a standard business sponsor;

the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a party to a work agreement;

the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

(9)The Minister is satisfied that either:

(a)there is no adverse information known to Immigration about the person or a person associated with the person; or

(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(10)If the person is a standard business sponsor — the Minister is satisfied that:

(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

(b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

(i)       are provided; or

(ii)      would be provided;

to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ASCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (a); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ASCO; or

(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ANZSCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ANZSCO; or

(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

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

(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

(ii)      if:

(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

(iv)     unless subparagraph (ii) applies—the holder:

(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

(h)either:

(i)       the person will:

(A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

(B)give a copy of that contract to the Minister; or

(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

(a)the terms and conditions of employment; and

(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

(c)the Minister considers it reasonable to do so.

(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.