Lead Accounting & Taxation Services Pty Ltd (Migration)

[2019] AATA 4038

Lead Accounting & Taxation Services Pty Ltd (Migration) [2019] AATA 4038 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Lead Accounting & Taxation Services Pty Ltd

CASE NUMBER:  1817170

HOME AFFAIRS REFERENCE(S):           BCC2017/1570126

MEMBER:Cathrine Burnett-Wake

DATE:21 August 2019

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 21 August 2019 at 4:33pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Taxation Accountant – approval as a standard business sponsor – sponsorship expired at time of delegate’s decision – current approval obtained – genuine position – labour market testing – skill and occupation exemption – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 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 30 May 2018 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 2 May 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 sub regulation 2.72(4) because at the time of the delegate’s decision, Lead Accounting and Taxation Services Pty Ltd had ceased to be an approved standard business sponsor.

4. Mr Dayananda Liyanaarachchige on behalf of Lead Accounting and Taxation Services Pty Ltd appeared before the Tribunal on 21 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Ms Ishani Nivanthika Palliyaguru.

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

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

7. 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

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

9. Having reviewed the application form on the Department of Home Affairs’ (the Department) file, the Tribunal is satisfied that:

   • the applicant nominated a relevant occupation under s.140GB(1)(b) being Taxation Accountant (ANZSCO 221113): r.2.73(1A)(a);
   • the application identified the nominee, Ms Ishani Nivanthika Palliyaguru, the proposed applicant for a Subclass 457 visa, as the person who would work in that occupation;
   • the nomination was made using the approved form and fee: r.2.73(2), (3), (5) and (9);
   • the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5);
   • the applicant has provided the certification as to whether or not the applicant has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and 
   • the nomination includes the locations at which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO code, as well as the relevant certifications mentioned in r.2.72(10): r.2.73(4)/(4A).

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

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

11. 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.

12. Departmental records show that Lead Accounting and Taxation Services Pty Ltd have approval as a standard business sponsor, valid from 31 July 2018 until 31 July 2023.

13. At hearing Mr Liyanaarachchige told the Tribunal that when he originally lodged the nomination application with the Department on 2 May 2017, that his business was an approved standard business sponsor.  The Tribunal has reviewed Departmental records and Mr Liyanaarachchige’s claim in this regard is correct, as the business previously held approval as a standard business sponsor from 6 October 2014 through to 6 October 2017. Mr Liyanaarachchige claimed that the Department’s delay in its original decision disadvantaged him, and that they never contacted him to alert him that the standard business sponsorship had expired before moving to a decision. He told the Tribunal if he had of known it was about to expire, or had expired he would have rectified the issue immediately. Mr Liyanaarachchige told the Tribunal that he was surprised that the Department never contacted him about the issue, he said he was used to dealing with the Tax office, who would call if an issue occurred so you could resolve it.

14. As Lead Accounting and Taxation Services Pty Ltd has current approval as a standard business sponsor the requirement of r.2.72(4) is met.

    Identification of the nominee

15. 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.

16. The application for nomination form submitted to the Department identifies Ms Ishani Nivanthika Palliyaguru as the visa applicant who will work in the nominated occupation. As such, this requirement is met.

    Requirements for existing Subclass 457 visa holders

17. 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.

18. 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

19. 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.

20. The applicant stated in the nomination application form submitted to the Department that the nominated occupation is Taxation Accountant, with the corresponding ANZSCO code of 221113.

21. The nomination also provides the location at which the nominated occupation is to be carried out, being an address in Dandenong, Victoria.

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

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

23. 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.

24. The application form submitted to the Department contains the necessary certification. As such, the requirement of r.2.72(8B) is met.

    No adverse information known to Immigration

25. 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.

26. Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to Immigration (or the Tribunal) about the applicant or any person associated with it.

27. Accordingly, the Tribunal is satisfied the requirements of r.2.72(9) are met.

    Specified occupation

28. 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 instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument.

29. In determining whether the nominated occupation corresponds to the an occupation in the specified instrument, the Tribunal has had regard to the skills level and tasks of the occupation as described in ANZSCO, the position description provided by the applicant, the written submissions and Mr Liyanaarachchige’s oral evidence.

30. At the hearing, Mr Liyanaarachchige provided detailed oral evidence about the operations of his accounting firm, the business’ employees and their roles within the business. Mr Liyanaarachchige also provided detailed evidence about the tasks undertaken by the nominee, who has filled the role, part time from February 2017 and full time since July 2017.

31. On the basis of Mr Liyanaarachchige’s evidence, which the Tribunal found to be credible, consistent and supported by the documentary evidence, the Tribunal is satisfied that the tasks of the position are consistent with the tasks of the occupation of Taxation Accountant. The Tribunal is also satisfied that the position is not in a position that is of a clerical, bookkeeping or accounting clerk nature.

32. Given the above, the Tribunal finds that the nominated occupation of cook and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument and that the caveat conditions specified in the instrument do not apply in this case. For these reasons the requirements of r.2.72(10)(aa) are met.

    Terms and conditions of employment

33. 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.

34. 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.

35. The evidence on file indicates the nominee's base salary is $55,800 plus superannuation. At hearing Mr Liyanaarachchige outlined that there was an equivalent worker within the organisation that enjoyed the same terms and conditions and was paid a comparable salary. This was supported by evidence of an employment contract provided to the Tribunal for the other employee in the role of Taxation Accountant who is an Australian.

36. The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

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

    Base rate of pay

38. 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 (currently $53,900).

39. 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.

40. 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 (currently $250,000): r.2.72(10AB).

41. The Tribunal is satisfied from the evidence provided that the nominee's annual earnings are $55,800 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc), unless the Tribunal is satisfied that the annual earnings of an equivalent Australian employee to the nominee would exceed the TSMIT or it is reasonable to disregard r.2.72(10)(cc).

42. The evidence before the Tribunal is that there is an equivalent Australian employee and their earnings are $55,800 plus superannuation, which exceeds that of the TSMIT. On that basis the Tribunal finds r.2.72(10)(cc) is met.

    Certification under r.2.72(10)(e)

43. 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 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 instrument IMMI 13/067.

    ·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 IMMI 13/067; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.

44. Based on information before it, including in the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made, and for these reasons, the requirements of r.2.72(10)(e) are met.

    Position must be genuine

45. 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.

46. At hearing Mr Liyanaarachchige, described his business operations in detail. Mr Liyanaarachchige is the sole owner and shareholder of Lead Accounting and Taxation Services Pty Ltd, an accounting firm, in the Melbourne suburb of Dandenong. Mr Liyanaarachchige outlined that the firm had been in operation since 2007, and that he currently employs a team of eight: being four Tax Accountants, an Administrator, a part-time bookkeeper and two trainee Accountants.  Mr Liyanaarachchige told the Tribunal that he had over 2000 clients that were a mix of individuals and businesses, which he also provided a client list for. It was explained to the Tribunal that the firm’s client base was drawn mainly from the Sri-Lankan community, and that it was very important that because of this, his employees were bi-lingual as his clients liked to speak in their own language and preferred to deal with someone from Sri-Lankan heritage.

47. Mr Liyanaarachchige outlined to the Tribunal that he also had other business interests which kept him extremely busy, which included a mortgage brokering service and a property development business, which currently had five building development projects underway.

48. Mr Liyanaarachchige described in detail the duties of the nominee. He also explained that the current role she undertook would be the same as the nominated role for the visa, that of Taxation Accountant. The nominee’s duties, as stated by Mr Liyanaarachchige, were consistent with the position description before the Tribunal as well as the ANZSCO for the occupation of Taxation Accountant. The nominee who was also in attendance at the hearing gave evidence of her current duties of Tax Accountant, which were consistent with what Mr Liyanaarachchige described.

49. On the totality of the evidence, the Tribunal is satisfied that the business requires a Taxation Accountant. The Tribunal is satisfied that the business employs four Taxation Accountants, including the nominee. The Tribunal is satisfied, on the basis of the financial records, that the business is financially viable to support its employees.

50. Having regard to the nature, size and activities of the business, the tasks to be undertaken in the position and the nominee's background, the Tribunal is satisfied on the totality of the evidence that the position of Taxation Accountant, as identified in the nomination, is genuine. For these reasons, the requirements of r.2.72(10)(f) are met.

    Employment under contract

51. 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.

52. The applicant has provided to the Tribunal a written contract signed 3 June 2019 which sets out the terms and conditions of employment and confirms the annual salary of $55,800, exclusive of superannuation and packaged benefits. Therefore the requirements of r.2.72(10)(h) are met.

    Work agreements

53. 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.

54. The applicant is not a party to a work agreement, and for this reason the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

55. 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.

56. 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 s.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.

1. 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.

2. The occupation of Taxation Accountant enjoys a skill and occupation exemption from labour market testing as a skill Level 1 ANZSCO.

3. Notwithstanding this, the applicant undertook labour market testing and has provided a copy of the advertisement and tax invoice for the position of Tax Accountant posted on the Seek website.

4. For these reasons, the labour market testing requirements in s.140GBA are met.

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

   DECISION

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

   Cathrine Burnett-Wake
   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.