Luke 545 Pty Ltd (Migration)

[2019] AATA 2739

Luke 545 Pty Ltd (Migration) [2019] AATA 2739 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Luke 545 Pty Ltd

CASE NUMBER:  1700595

HOME AFFAIRS REFERENCE(S):           BCC2016/2902499

MEMBER:Antonio Dronjic

DATE:16 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 16 April 2019 at 12:56pm

CATCHWORDS

MIGRATION – nomination – not satisfied position associated with nomination occupation is genuine – business identified a need for a full-time chef – nominee does not work on a full-time basis – business was not actively seeking to employ an alternate person to the nominated position – proposed salary – inflated to avoid providing evidence of the nominee’s English language competency – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 140GBA, 359(2)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8105, rr 2.72(10)(f), 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 22 December 2016 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 1 September 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 of the Act.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine.

4. The applicant applied to the Tribunal on 13 January 2017 for review of the delegate’s decision. With its application, the applicant provided a copy of the primary decision record. The nominated occupation in the nomination application is Chef (ANZSCO 351311).

5. On 19 December 2018, the Tribunal sent a letter to the applicant which contained a request to provide information in writing demonstrating that the nomination meets all the requirements of the criteria in r.2.72 of the Regulations. The request was made pursuant to s.359(2) of the Act and included the following:

   On 18 April 2017 the Prime Minister of Australia and the Minister for Immigration announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a business nomination and a subclass 457 visa application. Importantly, the approval of a business nomination for the nominated occupation of a Chef is now subject to particular exclusions (‘caveats’). The relevant instrument currently in place for this purpose provides that for the purposes of paragraph 2.72(10)(aa) the occupation of a Chef cannot be approved where the position involves mass production in a factory setting or is in a limited service restaurant.

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

   Please note that the Tribunal must consider whether Karisha Group Pty Ltd meets all the relevant criteria in regulation 2.72 at the time the Tribunal makes a decision. This means that you or another person authorised by Karisha Group Pty Ltd should provide updated information regarding all the relevant criteria in regulation 2.72, including but not limited to the particular criteria that the delegate found was not met.

6. On 31 December 2018, the applicant’s representative submitted the following:

   ·Submissions stating that the market salary rate for a head chef in Hobart was determined to be $59,598 based on the reports obtained from PayScale and Job Outlook and that the nominee’s proposed salary of $98,000 is reflective of his cooking experience and expertise. Included in the submissions was the job description for the nominated position together with a list of part-time and full-time employees engaged by the sponsoring business;

   ·Bundle of tax invoices from 2016 as evidence of renovations undertaken at the restaurant;

   ·A copy of the nominee’s educational certificates from Korea (Associate Degree in Culinary);

   ·A copy of the nominee’s work reference letter from Korea (with translation);

   ·The nominee’s resume;

   ·Bundle of photographs depicting the restaurant operated by the sponsoring business;

   ·A copy of the restaurant’s menu;

   ·A copy of the extract from PayScale dated 27 December 2018, indicating the average salary rate for a head chef in Hobart, Tasmania is between $48,000 and $78,500;

   ·A copy of the Department’s notice of approval of sponsorship status as evidence that the sponsorship status is effective until 1 April 2021;

   ·Copies of the liquor licence and fish permit issued to the restaurant;

   ·Evidence of business name registration dated 29 April 2016;

   ·A copy of the updated employment agreement dated 20 December 2018, indicating the proposed salary to the nominee to be $98,000 based on full-time employment (38 hours per week);

   ·A copy of a job outlook description for a position of chef dated 20 December 2018;

   ·Copies of business activity statements (BAS) from 1 July 2017 to 31 December 2017 and from 1 April 2018 to 30 June 2018;

   ·Copies of the sponsoring business’ bank statements from October to December 2018, indicating payment of salaries made to employees, including the nominee;

   ·Copies of 2017 and 2018 State Awards for Excellence for best Asian and best seafood restaurant conducted by the Tasmanian Hospitality Association;

   ·A copy of 2018 certificate of excellence from TripAdvisor awarded to the Poseidon Restaurant (trading name of the restaurant operated by the sponsoring business); and

   ·Mercury newspaper article from 7 August 2016 about the Poseidon Restaurant.

7. On 4 January 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 5 February 2019.

8. As the person appearing before the Tribunal had no authority to represent the sponsoring business in these proceedings, the hearing was adjourned until 28 March 2019.

9. On 11 February 2019, the applicant’s representative wrote to the Tribunal advising that Mr Choi has been appointed as director and secretary of the review applicant company as of 8 February 2019. The representative enclosed:

   ·A copy of the Australian Securities and Investments Commission (ASIC) extract for the sponsoring business; and

   ·Financial statements for the year ending on 30 June 2018.

10. On 15 March 2019, the applicant’s representative submitted copies of the nominee’s payslips for the period from 11 to 24 February 2019.

11. Mr Young appeared via video link before the Tribunal on 28 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was represented in relation to the review by its registered migration agent who participated at the hearing via telephone conferencing.

12. Mr Young stated that he is the director and a manager of the sponsoring business. His wife, Ms Mina Kwak is the sole shareholder. When asked if he is employed by the business and draws wages, Mr Young stated that he takes between $500 and $1,000 per week as director’s fees. He attends business premises five days per week and stays there between two and five hours. His wife also takes money from the business. The amount varies from $200 to $500 per week.

13. I noted that the applicant provided a copy of financial statements for the year ending on 30 June 2018 and that the profit and loss statement does not record payment of any director’s fees. Mr Young was unable to explain why.

14. The Poseidon Restaurant has been operating for some five years. It has a seating capacity of up to 70 customers and is opened seven days per week. The business employs 15 part-time and full-time employees. Currently, the business employs three full-time employees. Mr Erik Boyle is employed as a full-time cook, Mr Ko is training to become a cook and also works as a kitchen hand and Mr Ahn is employed as a waiting staff supervisor.

15. The business also employs Mr Hoon Jang as a part-time cook but Mr Young was unable to inform the Tribunal what his hourly rate is.

16. Mr Young gave evidence that the nominee, Mr Jung is not employed as a full-time head chef. He commenced employment at the sponsoring business in 2016 and Mr Young was not certain whether the nominee initially worked as a part-time or full-time head chef.

17. Mr Young stated that the nominee worked as a full-time head chef for the period of four to five months commencing in September 2016. Acting on the advice received for its migration agent, from February 2017 the business employed the nominee on a part-time basis. To the present time, the nominee works four to five days per week. His hourly rate is $49.50.

18. Mr Young gave evidence that the business identified a need to employ a head chef on a full-time basis in early 2016. He stated that the business advertised for this position in the local newspapers and on Gumtree but no one responded to the advertisements. The nominee was referred to Mr Young by one of his business colleagues. Mr Young conducted an interview with Mr Jung in the Korean language. At that time, the nominee was a holder of a student visa and was only allowed to work 20 hours per week. The nominee was studying an English language course of less than 12 months’ duration. After the business lodged the nomination application at the Department on 1 September 2016, the nominee commenced full-time employment at the restaurant.

19. I enquired as to whether the sponsoring business attempted to employ an alternate person to a position of a full-time head chef since December 2016, when the Department refused the nomination application that is the subject of the current review. Mr Young stated that the business ‘looked around’ but has not advertised for this position since December 2016 and was not actively seeking to employ an alternate person to the nominated position.

20. When questioned why the business did not seek an alternate head chef who would be able to work at the restaurant on a full-time basis, Mr Young stated that the business developed a ‘structure’ so that the nominee does not need to work on a full-time basis.

21. I noted that this ‘structure’ has been in place for more than two years which may indicate that the business in fact does not have a genuine need for a full-time head chef.

22. I enquired as to who is undertaking the tasks of a head chef when the nominee is not working at the restaurant. Mr Young stated that Mr Boyle and two other cooks are in charge when the nominee is not there.

23. When questioned as to why the nominee has been working on a part-time basis since February 2017, Mr Young reiterated that the business followed the advice received from their migration agent.

24. I observed that the business provided two employment agreements signed by the nominee. The first employment agreement was signed in February 2016 and according to this agreement the nominee’s salary is set to be $98,000. The amount of the proposed salary was not changed in the updated employment agreement signed on 20 December 2018.

25. I further noted that, according to the market salary research undertaken by the sponsoring business, the average salary rate for a head chef in Hobart, Tasmania is between $48,000 and $78,500. I enquired as to why the nominee was offered a substantially higher salary.

26. Mr Young stated that the business decided to offer a higher salary to the nominee because of his skills and experience. I asked Mr Young if the business offered the nominee the annual salary of $98,000 because of his inability to pass the prescribed English language test, which is one of the requirements for the grant of a Subclass 457 visa. I noted that the proposed salary would exempt the nominee from providing evidence of English language competency. Mr Young stated that this was not the reason for offering the nominee a salary of $98,000 as ‘he is not a member of my family’.

27. I noted that, according to the profit and loss statement for the year ending on 30 June 2018, the total amount paid for wages and salaries was $203,000. I questioned Mr Young how this amount can cover wages for 15 employees. I requested that the applicant provide additional documentary evidence related to payment of wages to its employees including PAYG payment summaries and payslips for Mr Erik Boyle, Mr Ko, Mr Ahn and the nominee for the past two years and evidence of advertising for the position of a full-time chef from 2016.

28. On 11 April 2019, the applicant’s representative submitted:

    ·A copy of the letter headed ‘Further information about the key employees of Luke 545 Pty Ltd’ stating inter alia that the nominee has not been able to work for the sponsoring business on a full-time basis because of his family responsibilities, uncertainties and frustration surrounding his visa status. It was further stated that Mr Young, as the director and a manager of the sponsoring business ‘sometimes takes money from the restaurant in the form of directors’ fees or wage while there is no regular payment from the restaurant’. It was submitted that in 2018, he did not take any directors’ fees;

    ·A bundle of payslips for the nominee from April 2017 to 31 March 2019 as evidence that he was working between four and 12 hours in any given week during this period;

    ·PAYG payment summary for the nominee for the 2017/2018 financial year evidencing the gross payment of $20,180;

    ·PAYG payment summary for Mr Erik Boyle, a cook employed on a full-time basis at the restaurant, for the 2016/2017 financial year as evidence of his gross payment of $46,434;

    ·PAYG payment summary for Mr Erik Boyle for the 2017/2018 financial year as evidence of his gross payment of $48,233;

    ·A bundle of payslips for Mr Boyle from April 2017 to 31 March 2019 as evidence of his full-time employment as a cook at the sponsoring business;

    ·PAYG payment summary for Mr Hoon Jang, employed as a casual cook by the sponsoring business, for the 2017/2018 financial year as evidence of his gross payment of $19,852;

    ·A bundle of payslips for Mr Hoon Jang, from April 2017 to 31 March 2019 evidencing the hourly rate of $22.51;

    ·PAYG payment summary for Mr Jiseong Son, employed as a casual cook by the sponsoring business, for the 2017/2018 financial year as evidence of his gross payment of $17,540;

    ·A bundle of payslips for Mr Jiseong Son from April 2017 to 31 March 2019 evidencing the hourly rate of $23.51;

    ·PAYG payment summary for Mr Ahn, employed as a casual waiting staff supervisor by the sponsoring business, for the 2016/2017 financial year as evidence of his gross payment of $19,546;

    ·A bundle of payslips for Mr Ahn, from April 2017 to 31 March 2019 evidencing the hourly rate of $23.51; and

    ·A copy of a letter from the accounting firm retained by the sponsoring business dated 10 April 2019 explaining how the wage information was declared to the ATO, listing all employees and their base salaries.

29. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. 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.

    Position must be genuine

31. 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.

32. I have carefully considered the applicant’s evidence regarding the ongoing need for the position. In his evidence, Mr Young stated that the business identified a need to employ a chef on a full-time basis in early 2016. The nominee has held a bridging visa “A” since February 2016. This bridging visa is subject to an 8105 condition which effectively prevents the nominee from working more than 20 hours per week if he was enrolled in a course of study or training.

33. Despite not being involved in a course of study or training after completing his English language course, the nominee continued to work on a part-time basis. In his evidence, Mr Young stated that the nominee works four to five days per week. The nominee’s payslips from April 2017 to June 2018 provided by the applicant to the Tribunal indicate that the nominee in fact worked between four and 12 hours in any given week during this period.

34. When the Tribunal enquired as to why the nominee does not work on a full-time basis, considering Mr Young’s evidence that the business identified a need for a full-time chef in early 2016, the initial explanation was that the applicant followed the advice given by its migration agent. However, in the post hearing submissions, a different explanation was provided. The applicant stated that the nominee was unable to work on a full-time basis because of his family responsibilities as ‘he has to take care of his ill wife and infant child and because there is a high degree of uncertainties and frustration surrounding his visa status’.

35. When asked if the sponsoring business has attempted to employ an alternate person to a position of a full-time head chef since December 2016, Mr Young stated in his evidence that the business ‘looked around’ but has not advertised for this position since December 2016 and was not actively seeking to employ an alternate person to the nominated position.

36. Mr Young stated in his evidence that the business developed a ‘structure’ so that the nominee does not need to work on a full-time basis. The Tribunal noted that this ‘structure’ has been in place for more than two years. If the sponsoring business had a genuine need to employ a chef on a full-time basis since early 2016, and having been aware that the proposed nominee was unable to work on a full-time basis because of his family responsibilities and uncertainties and frustration surrounding his visa status, the Tribunal would expect that the sponsoring business would have at least attempted to employ an alternate person to this position. However, according to Mr Young’s evidence, the business was not actively seeking to employ an alternate person to the nominated position. Based on this evidence, the Tribunal is not satisfied that there is a genuine need for the position of a full-time chef at the restaurant.

1. Based on the evidence before it, and in particular oral evidence from Mr Young, employees’ payslips, financial statements for the sponsoring business and its organisational chart, the Tribunal is not satisfied that there is a genuine need for the position of a full-time chef at the restaurant.

2. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(f) are not met.

3. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

   Tribunal’s observations

4. The Tribunal has concerns that the nominee’s proposed salary of $98,000 was inflated in order to avoid providing evidence of the nominee’s English language competency. The Tribunal observed that the proposed salary is considerably higher than the salary determined by the applicant’s own market research (between $48,000 and $78,500). These concerns are not alleviated by the applicant’s statement that the nominee’s salary is reflective of his cooking experience and expertise and that the nominee ‘is not a member of his family’.

   DECISION

5. The Tribunal affirms the decision not to approve the nomination.

   Antonio Dronjic
   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.