LUCKY CURTAINS & BLINDS PTY LTD (Migration)

[2019] AATA 1541

LUCKY CURTAINS & BLINDS PTY LTD (Migration) [2019] AATA 1541 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LUCKY CURTAINS & BLINDS PTY LTD

CASE NUMBER:  1711037

HOME AFFAIRS REFERENCE(S):           BCC2016/3523350

MEMBER:Catherine Carney-Orsborn

DATE:6 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2019 at 3:50pm

CATCHWORDS
MIGRATION – nomination refusal– standard business sponsor– Upholsterer ANZSCO 393311– nominated occupation corresponds to a specified occupation –the position is genuine –decision under review set aside

LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, 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 Immigration and Border Protection on 4 May 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 23 October 2016. 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 2.72(10)(f)  because they were not satisfied the position was genuine.

4. The applicant nominator and the nominee appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

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.

8. The representative of the nominating company Mr Lee gave oral evidence to the Tribunal a summary of his evidence is as follows.

9. Mr Lee came to Australia in 1998.  He became a citizen approximately 10 years ago.  He stared his business which was in Blinds and Curtains.  He incorporated as a company in 2010.

10. He is a standard business sponsor until 2020.  He claims that the nominee has a white card so he can go onto building sites and install blinds and curtains.  He said he may have to deliver a bed head or couch to a delivery site.  He claimed that the nominee is on a bridging visa and although he works for the nominator he only works 40 hours a fortnight.  He said he pays him around $28 per hour.  He proposes to pay him about $60,000 plus superannuation.

11. The nominating company is mainly involved with making blinds and curtains however he states he would like to add upholstery to his business.

12. He claims he employs no other upholster and all his other employees just make curtains and blinds or do administration.   He said he looked at websites to consider the correct pay for the nominee.

13. The Tribunal asked what type of work the nominee is currently doing.  He said the nominee comes to the factory in the morning and if they have an order he considers the order and decides how much material is needed.

14. He said he mainly does bed-heads, padded pelmets, chairs and fabric coverings.

15. He said he did not undertake any labour market testing as he could not afford anyone full-time.  He claims he met the nominee and wanted him to join his business.  He confirmed he is currently working part-time.

16. He said he was always passing his customers on to another upholster however he could not control the quality when the upholsterer was not employed in his company.  He said he can see an opportunity for his business in upholstery.

17. He said he did not try to employ any other upholsterer.  He said at the present time most of the nominee’s work is in pelmets and bed heads.

18. Since he started his business it is growing and he is happy for it to grow further.  He started only doing curtains and then found the blind business is getting bigger.  He invested money in a blind factory and new machinery and it has been successful.

19. He now wants to expand and do upholstery.

20. The nominee’s evidence is that he came to Australia in 2012 on a student visa.  He studied language and business.  He worked in Korea as an upholsterer.  He learnt all his skills on the job.  He claims he had 4 years on the job training.

21. He claims he applied for a 457visa and is currently on a bridging visa.  He works 40 hours a fortnight. He started working for the nominating company in 2016.  He starts work at 8am he checks the orders and if quotations are needed he visits the customers’ house.  He said the last upholstering job he undertook was reupholstering a sofa couch in Glebe.

22. He claims that because it is a Blind company he does quotes for blinds and upholstery.  He claims he earns $900 a fortnight.  He said he found the job through the Korean community and he did on-line searches for blind companies.

23. He contacted the company and spoke to them.

24. The nominee’s wife gave evidence she stated that he is working every day of the week and installs blinds.

    The nomination must comply with the prescribed process

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

26. The applicant is nominating the occupation of Upholsterer ANZSCO 393311, which is an occupation under s.140GB(1)(b): r.2.73(1A)(a). The applicant has identified in the nomination Seunghwa Song , an applicant for a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b). The Departments’ records confirm that the nomination was made online using the approved form (internet) and the prescribed fee has been paid; r.2.73(2), (3), (5) & (9). The applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5). The nomination includes the location, Guildford, NSW, 2161, at which the occupation will be carried out, and the name and 6 digit ANZSCO code: r.2.73(4)/(4A). 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)

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

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

28. 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.

29. Information before the Tribunal indicates that the applicant was approved as a standard business sponsor for a five year period commencing 15 December 2016. That sponsorship remains in force and the Tribunal is satisfied that the applicant, at the time of this decision, is a standard business sponsor.

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

    Identification of the nominee

31. 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.

32. On the basis of information on the nomination application the Tribunal is satisfied that the applicant has identified Seunghwa Song as the person to undertake the nominated occupation and that Seunghwa Song has applied for Subclass 457 visa.

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

    Requirements for existing Subclass 457 visa holders

34. 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.

35. 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

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

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

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

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

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

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

39. 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.

40. The applicant provided the required certification as part of the nomination.

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

    No adverse information known to Immigration

42. 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.

43. There is nothing before the Tribunal which indicates there is any adverse information of the type described above known to the Department about either the applicant or an ‘associated person’.

44. Given the above, the Tribunal finds that the requirements of r.2.72(9) are met.

    Specified occupation

45. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

46. The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of Upholsterer and corresponding code 393311 appear on the relevant list in the relevant instrument. The instrument does not require the nomination to be supported in writing by a specified organisation. 

47. For these reasons, the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

48. 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.

49. 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.

50. 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).

51. The nominator gave evidence that he sought out the appropriate salary for an Upholsterer by checking employment sites and appropriate instruments.

52. 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).

53. The contract of employment, which sets out the terms and conditions of employment, indicates that the nominee’s base salary will be $60,000.00 plus superannuation.

54. As the annual earnings of the nominee are greater than those specified in the written instrument the requirement does not apply.

55. For these reasons the requirements of r.2.72(10)(c) are not applicable.

    Base rate of pay

56. 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 IMMI13/028 which is currently $53,900

57. 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.

58. 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).

59. The nominee’s base salary will be $60,000. As this amount exceeds the TSMIT, which is currently specified as $53,900, the Tribunal is satisfied that the requirements of r.2.72(10)(cc) are met.

60. 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)

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

62. The certification relates to the tasks of the position, the nominated occupation and the skills and qualifications of the visa holder, or proposed visa holder.

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

    Position must be genuine

64. 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.

65. The applicant has supplied a large volume of information to the Tribunal which was not available to the Department.

66. The Tribunal took oral evidence from the applicant and the nominee.

67. The Tribunal accepts from the financial documents provided that the business is profitable and growing.  The Tribunal found the applicant’s representative to be a credible witness.

68. He described how the business is run and that the nominee is currently doing pelmets and bedheads however he would like that part of the business to expand.  The applicant provided references from customers and the business website outlines the work being done.

69. Overall, the Tribunal is satisfied that the applicant’s business is growing and it accepts the applicant’s evidence that they need an experienced person to take the role Upholsterer for it to expand. 

70. The Tribunal considers that there is some overlap with the tasks set out in ANZSCO however the Tribunal is satisfied after weighing up the evidence provided both oral and documentary, including the nominee’s work experience and background that the requirements as described in ANZSCO are satisfied.

71. Having regard to the tasks typically included in the occupation Upholsterer as described in ANZSCO and the duties of the nominated position, particularly in the context of the nature and operations of the business, the Tribunal is satisfied that the tasks of the position are consistent with that of the occupation Upholsterer.

72. The Tribunal was concerned that the nominee’s wife gave evidence that he is working every day and making blinds however it has weighed that evidence against the large amount of independent evidence and is satisfied that the position is a genuine position.

73. After considering all the evidence before it and the oral evidence the Tribunal is satisfied that the position is genuine.

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

    Employment under contract

75. 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.

76. A copy of the contract of employment which set out the terms and conditions of employment was provided to the Tribunal. For these reasons the requirements of r.2.72(10)(h) are met.

    Work agreements

77. 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.

78. 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

79. 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.

80. International trade obligations and LMT’ specifies that the effect of the Korea-Australia Free Trade Agreement is that, if the nominee is a citizen/national/permanent resident of the Republic of Korea, labour market testing is not a nomination requirement.

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

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

    DECISION

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

    Catherine Carney-Orsborn
    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.