Khadim Pty Ltd (Migration)

[2022] AATA 2924

Khadim Pty Ltd (Migration) [2022] AATA 2924 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Khadim Pty Ltd

REPRESENTATIVE:  Mr Tanveer Singh (MARN: 1173217)

CASE NUMBER:  1902308

HOME AFFAIRS REFERENCE(S):          BCC2018/859642

MEMBER:Danielle Galvin

DATE:4 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 04 July 2022 at 4:06pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Chef – genuine position – financial capacity to employ the applicant – updated financial information –company registration issue resolved – exemption from labour market testing – terms and conditions for the nominee, including the earnings, are no less favourable – decision under review set aside        

LEGISLATION

Fair Work Act 2009
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 14 January 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Khadim Pty Ltd trading as Handi Kitchen, applied for approval on 22 February 2018. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 nominee was named as Usman Khalid in the nominated role of chef (ANZSCO 351311).

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfyR.2.72(10)(f) of the Migration Regulations because, based on the information before them, they were not satisfied that the position associated with the nominated occupation was genuine nor that the business could financially support the position in addition to the other employees of the business.

5. The delegate had access to the following documents:

   ·     The application claiming an annual turnover for the previous year of $175,389. Mansoor Khalid was named as the business contact, there are 2 Australian employees and 4 foreign employees and claims that they are labour market exempt as the occupation is exempt. The salary proposed is $54,000;

   ·     Position description;

   ·     Employment contract signed and dated 22/3/17;

   ·     Bundle of Applicant’s BAS

   ·     open letter from Accountants dated 21/2/18, Signage Accountants Pty Ltd summarising BAS and providing figure for 2016-2018

   ·     stat. dec. from Mansoor Khalid declared on 21/2/18 claiming that the nominee has been solely responsible for business kitchen operations and orders, manages, food planning, monitoring quality, hygiene, cost control, training new staff. He claims that he could not find an equal in the market;

   ·      applicant’s draft tax return 2017 claiming income as $175,389 and salaries as $73,880 and draft financial statements for 2017 which is consistent with draft tax return;

   ·     Description of restaurant premises with dine in menu and wait staff serving Pakistani food;

   ·     Organisational chart showing under the owner there is 1 full time chef (the nominee) and 1 part time chef, 2 part time waiters, 1 part time cook and 1 part time kitchen hand and 1 other part time worker;

   ·     Submission claiming the nominee has worked in the restaurant since 2015 following his subclass 457 visa approval and the owner does not work there and that there is no relationship with the nominee;

   ·      Extracts for like salaries;

   ·     ASIC company search extract as at 9/3/18 showing Khalid Mansoor as sole director

6. In support of the review application the applicant sent to the Tribunal the following documents:

   ·Open accountant’s letter dated 30/8/21 confirming that the business underwent renovations in 2021;

   ·Applicant’s ASIC company extract as at 7/9/21 showing that there was a strike off action in progress;

   ·Applicant’s BAS - Jul-Sept 2021 showing income as $70,175 and salaries $27,085

   Oct-Dec 2020 showing income as $76,557 and salaries $27087

   Jan-Mar 2021 showing income as $87,099 and salaries $31241

   APR-Jun 2021 showing income as $92363 and salaries $36087

   Jul-Sep 2020 showing income as $70,175 and salaries $27,085

   ·Applicant’s draft profit and loss statement 2021 showing income for 2020 as $268,235 and 2021 as $313,147, salaries for 2020 as $110,000 and 2021 as $121,500

   ·applicant company tax return for 2020 showing income as $268,235 as salaries as $110,000 and for 2021 showing income as $313,147 and salaries as $121,500;

   ·letter to the applicant from Greater Dandenong Council dated 30/6/21 enclosing a renewal of registered premises under the Food Act 1984 together with receipt for $763 dated 2/8/21

7. On 12 January 2022 the Tribunal wrote to the applicant at the provided address for correspondence inviting them to provide updated and current information to the Tribunal in writing by 27 January 2022.

8. On 14 January 2022 the Tribunal received the following documents from the applicant:

   ·Information that the applicant had previously sponsored the nominee under a subclass 457 visa but could not find an alternative and so sponsored again;

   ·ABN lookup for Khadim Pty Ltd  noting the business name as Handi Kitchen;

   ·Department sponsorship approval letter to applicant dated 8/7/17 stating approved from 8/8/17-8/8/22;

   ·Employment contract signed and dated 12/1/22;

   ·Nominee’s tax assessment for 30/6/20 stating taxable income as $53,679;

   ·Organisational chart showing under the owner there are 2 full time chefs (1 is the nominee), 1 part time cook and 2 casual hand/wait staff.

9. Mr Mansoor Khalid, the sole director of the applicant, appeared, on the applicant’s behalf, before the Tribunal on 22 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s accountant.   The Tribunal was assisted by an interpreter in the Pakistani language.

10. The applicant was represented in relation to the review.

11. Mr Khalid stated that he is not related to the nominee, their shared surname being a common name. He also stated that, currently the business employs 1 chef full time (the nominee) on $54,000 per annum, 1 full time cook on $52,000 per annum, 1 full time kitchen hand on $21 per hour for a 38-40 hour week and 3 casual wait staff. Mr Khalid is the manager but is not in receipt of a salary. He stated that the restaurant has capacity to seat 60 and this will increase to 90 for the festival season which happens for approximately 1 month. Mr Khalid stated that the opening hours are from 5pm to 1am weekdays save for Wednesdays and from 9am-2pm and from 5pm to 1am on weekends. He stated that during COVID 19 lockdowns they were kept busy doing takeaway food.

12. Mr Khalid stated that he initially found the nominee through advertising on job sites and that the nominee is a specialist in Pakistani cuisine and has been the reason for the restaurant’s success and customer demand. He further stated that the nominee has worked for the applicant for 6 years after the original subclass 457 visa was granted. Mr Khalid described the nominee’s role as involving being the head chef, preparing menus, conducting catering services, stock listing, food quality assurance, maintaining standards and preparing specialist dishes.

13. The accountant advised that a strike off application against the company has been resolved as it was caused by non payment of a fee due to a change in accountants.

14. The Tribunal allowed the applicant to provide further submissions and documents by 12 April 2022.

15. On 7 April 2022 the Tribunal received the following documents:

    ·Open Letter from Expert Business and Accounting Solutions dated 6/4/22 confirming that the applicant is their client and that the loss sustained by the applicant in 2019 was due to renovations to the restaurant;

    ·Open Letter from Expert Business and Accounting Solutions dated 6/4/22 stating that “from information provided by the client that the company is trading profitable”. This does not state the independent opinion of the accountant as it refers to information provided by the client, being the applicant;

    ·Extract receipt showing a payment to ASIC on 22/3/22 of $972;

    ·ASIC company extract of the applicant as at 6/4/22 showing that the applicant is registered;

    ·Bundle of nominees achievements including a Diploma of Hospitality Management dated 14/12/09, Certificate III in Hospitality (commercial cookery) dated 16/12/08  and a  Diploma of Hospitality Management dated 7/5/08 from Holmesglen;

    ·Applicant’s 2019 tax return showing income as $253625 and expenses as $312346 and wages as $103848 showing a loss of $58721;

    ·Applicant’s 2020 tax return showing income as $268235 and expenses as $258012;

    ·Applicant’s 2021 tax return showing income as $313147 and expenses as $309409

    ·Job add extract for a chef in Pakistani Restaurant in Dandenong dated 7/5/15

    ·PAYG of nominee FYE 30/6/19 showing gross payments from applicant of $54,000, FYE 30/6/21 showing gross payments from applicant of $59,000;

    ·recruitment summary (dates not provided);

    ·submission from the applicant’s agent dated 6/4/22 in relation to labour market testing (LMT) stating that the applicant is exempt from LMT under s.140GBA pursuant to r.4.6.13.7 International trade obligations and LMT-Temporary Work (Skilled) visa (Subclass 457)- Nominations on the basis that Australia’s international trade obligations are inconsistent with the requirement. It was submitted that Australia is committed under the World Trade Organisation (WTO) General Agreement on Trade in Services (GATS) and evidence of LMT is not required if the nominee is a citizen of a WTO member country ad is being nominated by an employer for whom the nominee has worked in a continuous full time basis for 2 years immediately before the nomination was lodged. It was further submitted that as the nominee is a citizen of Pakistan which is a WTO member country and the nominee at the time of the nomination had been working on a full time basis for the applicant since 2015;

    ·nominee’s resume;

    ·Applicant’s BAS for-

    Jan-Mar 2019 showing sales as $56478 and wages as $27,001

    Apr-Jun 2109 showing sales as $78167 and wages as $22845

    Jul-Sep 2019 showing sales as $64,281 and wages as $23,755

    Oct-Dec 2019 showing sales as $78650 and wages as $23564

    Jan-Mar 2020 showing sales as $52187 and wages as $24124

    Apr-Jun 2020 showing sales as $52145 and wages as $40713

    Jul-Sep 2020 showing sales as $70175 and wages as $27085

    Oct-Dec 2020 showing sales as $76557 and wages as $27087

    Jan-Mar 2021 showing sales as $87099 and wages as $31241

    Apr-Jun 2021 showing sales as $92363 and wages as $36087

    Jul-Sep 2021 showing sales as $92993 and wages as $37143

    Oct-Dec 2021 showing sales as $122317 and wages as $33117

    Jan-Mar 2022 showing sales as $129589 and wages as $36650

16. 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

17. 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 reg 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

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

19. The Tribunal is satisfied, from having reviewed the documents on the Department’s file that the applicant nominated an occupation under s.140GB(1)(b) (being a Chef ANZSCO Code 351311) and therefore meets r.2.73(1A)(a). The applicant identified the nominee, Usman Khalid , the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and therefore meets the requirements of r.2.73(1A)(b). The nomination was made using the approved form and paying the prescribed fee and meets r.2.73(2), (3),(5) and (9).The applicant identified the nominee in the nomination thus meeting r.2.73(4),(4A) and (5).

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

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

21. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

22. The applicant has provided information which is confirmed by the Department’s records that the applicant is an approved business sponsor.

23. For these reasons the requirements of reg 2.72(4) are met.

    Identification of the nominee

24. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

25. The applicant has identified the nominee in the application as Usman Khalid who is the proposed applicant for a subclass 457 visa who will work in the nominated occupation.

26. For these reasons the requirements of reg 2.72(5) are met.

    Information about the nominated occupation

27. 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 IMMI 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.

28. The Tribunal is satisfied that the applicant is an approved sponsor, its nomination included the 6 digit ANSCO code for the nominated occupation being that of a chef and specified that the location at which the occupation was to be carried out was at Dandenong site for Handi Kitchen.

29. For these reasons the requirements of reg 2.72(8A) are met.

    Certification relating to conduct under s 245AR(1)

30. 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.

31. The Tribunal has reviewed the nomination application contained in the Department’s file and is satisfied that the applicant certified in writing that the applicant had not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

32. For these reasons the requirements of reg 2.72(8B) are met.

    No adverse information known to Immigration

33. 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 regs 1.13A and 1.13B.

34. Having received the Department’s file the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.

35. For these reasons the requirements of reg 2.72(9) are met.

    Specified occupation

36. Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument 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: reg 2.72(10)(b).

37. The Tribunal is satisfied that this is not the case here. The Tribunal is satisfied having compared the position description provided to the Department by the applicant with the ANSZCO occupational description for a Chef that the duties of the nominated occupation correspond to those of the occupation ANZSCO .

38. For these reasons the requirements of reg 2.72(10)(aa) are met and r.2.72(10)(b) does not apply.

    Terms and conditions of employment

39. 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 (Cth).

40. 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: reg 2.57(3A). ‘Earnings’ is defined in reg 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.

41. 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 the relevant instrument :reg 2.72(10AA).

42. 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; reg 2.72(10AB).

43. Based on the evidence before it the Tribunal finds that the nominee’s current annual earnings consist of a salary of $59,000 per annum (as stated in the most recent PAYG submitted), is not equal to or greater than $250,000. The applicant is therefore not exempt from these requirements. As a consequence, the Tribunal must be satisfied 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.

44. The provision of the extracts for like salaries and the detail of the employment contract show that the terms and conditions of the employment is consistent with those for the employment of a chef. The Tribunal is therefore satisfied the terms and conditions for the nominee, including the earnings, are no less favourable than those for the relevant Australian equivalent

1. For these reasons the requirements of reg 2.72(10)(c) are met.

   Base rate of pay

2. 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.

3. 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: reg 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: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.

4. Likewise, the requirement in reg 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: reg 2.72(10AB).

5. The Tribunal is satisfied that the nominee’s annual earnings are $59,000 and this is not equal to or greater than $250,000. Therefore, the applicant must satisfy r.2.72(10)(cc). The Tribunal is satisfied that the nominee’s annual earnings exceed the temporary skilled migration income threshold (TSMIT) and that 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 also be greater than the TSMIT.

6. For these reasons the requirements of reg 2.72(10)(cc) are met.

   Certification under reg 2.72(10)(e)

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

   ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant  instrument;

   ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument

   ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and

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

8. From the material provided the Tribunal is satisfied that the applicant certified in writing the above matters. For these reasons the requirements of reg 2.72(10)(e) are met.

   Position must be genuine

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

10. ANZSCO describes the tasks of a chef as planning and organising the preparation and cooking of food in dining and catering establishments and includes planning menus, estimating food and labour costs and supplies, monitoring the quality of dishes, demonstrating techniques and advising on cooking procedures and preparing and cooking food.

11. At the hearing, Mr Khalid stated that the nominee is a specialist in Pakistani cuisine and has therefore been behind the restaurant’s success and customer demand. Mr Khalid described the nominee’s role as involving being the head chef, preparing menus, conducting catering services, stock listing, food quality assurance, maintaining standards and preparing specialist dishes. The nominee’s qualifications are consistent with those of a head chef in a restaurant setting as is this business. The recent BAS and the applicant’s tax returns show that the business is now running profitably and the financial position is further supported by the accountant’s letter of dated 6/4/22. Mr Khalid relies on the nominee as he is not involved in the hands on operation of food preparation.

12. For these reasons the requirements of reg 2.72(10)(f) are met.

    Employment under contract

13. 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 relevant instrument.

14. The Tribunal is satisfied that the Employment contract signed and dated 22/3/17 was provided. For these reasons the requirements of reg 2.72(10)(h) are met.

    Work agreements

15. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 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 the applicant, these must have been met.

16. There is no evidence before the Tribunal that the applicant is a party to a work agreement

17. For these reasons the requirements of regs 2.72(11) and (12) are not applicable.

    Labour Market Testing

18. 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 ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

19. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant instrument. In addition:

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

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

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

21. In the agent’s submission dated 6/4/22 it was submitted that, in relation to labour market testing (LMT), the applicant is exempt from LMT under s.140GBA pursuant to r.4.6.13.7 International trade obligations and LMT-Temporary Work (Skilled) visa (Subclass 457)- Nominations on the basis that Australia’s international trade obligations are inconsistent with the requirement. It was submitted that Australia is committed under the World Trade Organisation (WTO) General Agreement on Trade in Services (GATS) and evidence of LMT is not required if the nominee is a citizen of a WTO member country ad is being nominated by an employer for whom the nominee has worked in a continuous full time basis for 2 years immediately before the nomination was lodged. It was further submitted that as the nominee is a citizen of Pakistan which is a WTO member country and the nominee at the time of the nomination had been working on a full time basis for the applicant since 2015. The Tribunal accepts the submissions and therefore the labour market testing requirements in s 140GBA are not applicable.

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

    DECISION

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

    Danielle Galvin
    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.