Les Deux Coqs Pty Ltd (Migration)

[2019] AATA 5157

Les Deux Coqs Pty Ltd (Migration) [2019] AATA 5157 (28 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Les Deux Coqs Pty Ltd

CASE NUMBER:  1810731

HOME AFFAIRS REFERENCE(S):           BCC2018/395084

MEMBER:Andrew George

DATE:28 July 2019

PLACE OF DECISION:  Darwin

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

Statement made on 28 July 2019 at 5:19pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Butcher or Smallgoods Maker –genuine position – position advertised within 12 month period prior to nominee’s employment – extensive business plan – position aligns with ANZSCO – labour market testing requirements met – decision under review set aside

LEGISLATION
Fair Work Act 2009
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), rr 2.57, 2.72, 2.73, Schedule 2, cl 457.223

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 28 March 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 Date of Application was 24 January 2018. 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)(f). The delegate considered that the weight of the evidence provided indicated that the position associated with the nominated occupation exists solely to facilitate the stay of the nominee in Australia rather than to fill a genuine vacancy or skill shortage.

4. A combined Hearing with case file 1814046 was held on 29 May 2019. Ms Katia Vincon appeared before the Tribunal for the applicant to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Bastien Verslype, and the Honorary Consul of France in Adelaide, Ms Sue Crafter. A letter of support dated 28 March 2019 was also received from the Director of Alliance Française d’Adélaide, Mr Laurent Pointud, who did not appear before the Tribunal to give evidence.

5. The applicant was represented in relation to the review by its solicitor and registered migration agent, Ms Alexandra Robinson (MARN: 1799655) of MSM Legal.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the 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. The Tribunal has considered the Nomination for a Temporary Business Entry visa submitted on 24 January 2018 and makes the following findings of fact:

   ·The person is nominating an occupation under s.140GB(1)(b), namely a Butcher or Smallgoods Maker – 351211: r.2.73(1A)(a);

   ·The applicant identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation, namely Mr Bastien Philippe Mary Verslype: r.2.73(1A)(b);

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

   ·The applicant has identified the nominee in the nomination, namely Mr Bastien Philippe Mary Verslype: r.2.73(4)/(4A) and r.2.72(5);

   ·The applicant 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 address provided in the application where the nominee will be employed is 8 Penfold Way, McLaren Vale in South Australia. This is contrary to the detailed oral and documentary evidence before the Tribunal, where it is clear that 8 Penfold Way is the company address and the nominee is employed elsewhere. The provision of the company address as the address where the nominee will be employed is presumably an error, although may have been fatal to the nomination. It is the location or locations where the occupation will be carried out that is required by r.2.72(8A)(d), not the company address. Fortunately for the applicant, however, the job description attached to the nomination includes a location at which the occupation of Butcher or Smallgoods Maker – 351211 will be carried out, namely 5/194 Prospect Road in Prospect in South Australia. This address is consistent with the oral and documentary evidence. For the purposes of the r.2.72(8A) the Tribunal regards this attached job description to be “… part of the nomination”. The Tribunal also notes that the relevant certifications mentioned in r.2.72(10) or r.2.72(11) have been provided: r.2.73(4)/(4A).

2. 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. The Tribunal notes an approval notice from the Department of Home Affairs dated 27 March 2018 approving the applicant as a standard business sponsor until 27 March 2023.

2. For these reasons 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. The Tribunal notes its previous finding that the applicant has identified the nominee in the nomination, namely Mr Bastien Philippe Mary Verslype. The Tribunal is satisfied from the oral evidence of both the applicant and the nominee that the nominee is currently working in the nominated occupation.

2. 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. In these cases:

   ·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);

   ·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);

   ·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and

   ·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

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.

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

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 instrument IMMI 18/004 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. The Tribunal finds that the:

   ·nomination includes a 6 digit ANZSCO code for the nominated occupation of Butcher or Smallgoods Maker – 351211 as specified in IMMI 18/004; and

   ·job description attached to the nomination includes a location at which the nominated occupation is to be carried out, namely 5/194 Prospect Road in Prospect in South Australia.

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. This certification was provided in the Nomination for a Temporary Business Entry visa submitted on 24 January 2018.

2. 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. The Tribunal has no evidence before it of any adverse information known to Immigration. For these reasons the requirements of r.2.72(9) are met.

Specified occupation

1. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 18/004, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument.

2. 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). The Tribunal is satisfied that no such circumstances arise. For these reasons the requirements of r.2.72(10)(b) are met.

3. The nominated occupation of Butcher or Smallgoods Maker – 351211 correspond to an occupation and 6-digit code specified in IMMI 18/004. For these reasons the requirements of r.2.72(10)(aa) are met.

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. The applicant has supplied a contract of employment, signed 16 January 2018, providing for an annual salary of $53,900 for a full-time role as a Smallgoods Maker. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, 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.

6. The documentary and oral evidence before the Tribunal is that the business has no Australian citizen or permanent resident performing equivalent work at the same location. Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.

7. Subitem 2(1) of Schedule A to IMMI 09/113 sets out the methodology for calculating the terms and conditions of employment if there is an applicable fair work instrument, state industrial instrument or transitional instrument. Clause 2.1 of the nominee’s contract of employment of 16 January 2018 identifies the Meat Industry Award 2010 (MA000059) as applying. The written submissions of the applicant’s solicitor dated 11 April 2019 do not address the Meat Industry Award 2010 (MA000059), but rather these submissions seem to apply subitem 2(2) of IMMI 09/113. Confusingly, the further written submissions of the applicant’s solicitor of 22 May 2019 refer to the Hospitality Industry (General) Award 2010 with regard to r.2.72(10)(cc). These submissions would seem to be erroneous. From the contract of employment, the Tribunal is satisfied that the Meat Industry Award 2010 (MA000059) applies to the nominated position. Subitem 2(1) of Schedule A therefore provides the applicable methodology for calculating the terms and conditions of employment.

8. The Tribunal has reviewed the classifications of meat industry workers contained in the Meat Industry Award 2010 (MA000059). From paragraph B.3.4 the Tribunal notes that “smallgoods maker in a meat retail establishment (non trade qualifications)” is a Meat Industry Level 4 (“MI 4”) employee. This level is consistent with the oral evidence the nominated person gave regarding his tasks as a smallgoods maker and the Tribunal is satisfied that it is the applicable level in the present circumstances. From paragraph 19.1, the Tribunal notes that a MI 4 employee is paid a minimum weekly wage of $795.70. The Tribunal is satisfied that the terms and conditions of a salary of $41,376.40 per annum are the terms and conditions that would be provided to an Australian citizen or Australian permanent resident to perform equivalent work.

9. The Tribunal is therefore satisfied that the terms and conditions of employment for the nominated position are no less favourable than the earnings and terms and conditions that are provided, or would be provided to an Australian citizen or permanent resident performing equivalent work in the same location.

10. 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 of $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).

4. As the base rate of pay of the nominee’s annual earning is $53,900, the base rate of pay for the nominated position is equal to the TSMIT threshold of $53,900.

5. The applicant’s solicitor has made extensive submissions dated 22 May 2019 with to regard to the annual earnings and base rate for an Australian smallgoods maker with the same level of skills and experience as the nominee. It is unnecessary to repeat these submissions, suffice to note that the nominee’s French language skills and cultural knowledge place him in a unique position in a business of the nature of the applicant’s. Such uniqueness is highlighted by the evidence of Ms Crafter and Mr Pointud. General comparisons with other butchers and smallgoods makers are ambiguous.

6. The Tribunal does not adopt all of the details of the applicant’s solicitor’s submissions regarding r.2.72(cc). However, and on balance, the Tribunal broadly accepts the flavour of those submissions. The Tribunal is satisfied that the annual earnings and base rate of pay under the terms and conditions of the equivalent Australian citizen or permanent resident is $53,900.

7. The Tribunal notes that this base rate of pay for the Australian equivalent is not greater than TSMIT, but rather it is one dollar short of this. Given that the base rate of pay is equal to the TSMIT in the context of a unique business, it is reasonable to disregard the requirement that the base rate of pay is not greater than the TSMIT.

8. For these reasons the requirements of r.2.72(10)(cc) are disregarded for r.2.72(2).

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 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

2. Based on the 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

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. The Tribunal received comprehensive oral evidence from both the applicant and nominee regarding the tasks of the position associated with the nominated occupation. The structure of the Tribunal’s questioning of these witnesses reflected the tasks listed in ANZSCO for a Butcher or Smallgoods Maker – 351211. There is no need to repeat the evidence, which is captured in its full detail in the transcript. The Tribunal assesses that both the applicant and nominee answered the questions put to them both with candour and an impressive knowledge of making French smallgoods. The Tribunal accepts the oral evidence of the applicant and the nominee with regard to the tasks of the position associated with nominated occupation. The Tribunal further notes that parts of this evidence are corroborated by the evidence of Ms Crafter and Mr Pointud. The Tribunal is satisfied that tasks of the position associated with the nominated position align with those in ANZSCO for a Butcher or Smallgoods Maker – 351211. The Tribunal is also satisfied that the nominated person is indeed performing those tasks.

3. The Tribunal has reviewed the extensive business plans, various employment documentation, and the ‘Photographies and Portfolio of Les Deux Coqs’ (including hyperlinks). The Tribunal notes that the oral evidence of the applicant and nominee is substantially consistent with these documents. The Tribunal has also reviewed the financial and tax documentation of the business, which seems to indicate a business growing in accordance with its plans.

4. Noting that the Tribunal has had the benefit of detailed oral evidence that was unavailable to the delegate, the Tribunal does not share the delegate’s concern that the position associated with the nominated occupation exists solely to facilitate the stay of the nominee in Australia rather than to fill a genuine vacancy or skill shortage. On the contrary, the Tribunal is satisfied on the material before it that such a concern is not a relevant consideration.

5. 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 relevant instrument.

2. The applicant has provided to the Tribunal a signed contract of employment dated 16 January 2018, which sets out the terms and conditions of employment and confirms the annual salary of $53,900 exclusive of superannuation. For these reasons 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.

2. The Tribunal is satisfied from the material before it that 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

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. 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 IMMI 13/136. 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.

3. 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.

4. In this case the nominated occupation is Butcher or Smallgoods Maker – 351211, which is a Skill Level 3 under ANZSCO. As such, the nominated occupation is not exempt from the labour market testing condition under IMMI 13/137. There is also no evidence before the Tribunal to indicate that the labour market condition would be inconsistent with an international trade obligation, or any other exemption. The Tribunal is therefore satisfied that the labour market testing condition applies.

5. The Tribunal notes the business plan from 2017 where Seek, CareerOne, and Facebook were intended to be used to publish jobs advertisements. The Tribunal also notes Annexure marked “KV_20” to Ms Vincon’s statutory declaration dated 10 April 2019. This annexure includes a report dated 18 January 2018 after the nominated position was advertised on CareerOne, where the nominee was ultimately decided upon to fill that role.

6. Ms Vincon gave convincing oral evidence regarding job advertising that the nominated position was indeed advertised within a 12 month period prior to the nominee’s employment. The Tribunal accepts this evidence. Further, from this evidence the Tribunal is satisfied that there is no suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position (s.140GBA(3)(d)).

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

8. 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.

Andrew George
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.