MAE AUSTRALIA PTY LTD (Migration)

MAE AUSTRALIA PTY LTD (Migration) [2020] AATA 914 (23 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MAE AUSTRALIA PTY LTD
CASE NUMBER:  1821428
HOME AFFAIRS REFERENCE(S):          BCC2018/876895
MEMBER:Alan McMurran
DATE:23 March 2020
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 23 March 2020 at 12:29pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – company transferring manufacturing operations from South Africa to Australia – plans to grow small business – position not simply to provide migration outcome – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140GB(2)
Migration Regulations 1994 (Cth), r 2.72(10)(f)
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
OVERVIEW

This is a nomination[1] seeking to appoint a manager to oversee the transfer of a manufacturing operation from South Africa to Australia. The sponsor manufactures flame resistant products for use in the coal mining industry.
[1] 23 February 2018
The sponsor has an established small business operating in Sydney’s Western suburbs. It seeks to employ in Australia an Accountant and an Engineering Manager. This application concerns the Engineering Manager (the nominee), who is one of four brothers who own the business (the Giudice family), and who currently resides in South Africa. The objective is for the nominee to obtain a four year 457 temporary work visa to enable him to complete the set up and transfer of the engineering operations to Australia.
The nomination[2] was refused because the Delegate[3] was not satisfied that the position associated with the nominated occupation was genuine[4], and that the nominee would be performing a significant majority of the duties associated with the occupation[5], or that the scope and size of the business and its intended expansion justified the position, so as to alleviate concerns the nomination was created simply to provide a migration outcome.
[2] s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations)
[3] 4 July 2018
[4] r. 2.72(10) (f)
[5] ANZSCO 133211
The Regulations[6] prescribe the criteria that must be satisfied for the Minister to approve a nomination. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified.
[6] 2.72(3) to (12)
The applicant appeared before the Tribunal on 19 March 2020 by telephone by its director, Giovanni Lo Giudice, and with the representative Mr Chang, to give evidence and present arguments and make submissions.
The Tribunal had available its file and the Department’s electronic file records[7]for the nomination and the recent submissions from the representative in answer to the Tribunal’s requests for information. In order for this review to succeed, the Tribunal must determine if the application is for a genuine position, and all the remaining criteria are met.
[7] BCC2018/876895
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
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
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 available files and notes as follows:
·The application nominates the occupation of Engineering Manager
·The nominee who will work in the occupation is identified as Mario Lo Giudice, an Italian citizen with South African permanent residency
·The nomination was made using the approved form and fee
·The applicant has identified the nominee in the nomination
·The applicant has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of the Act[8]
·The nomination includes the location/s at which the occupation will be carried out in Western Sydney, and the name and/or 6 digit ASCO/ANZSCO code[9] and the relevant certifications[10]
[8] s.245AR(1) of the Act: r.2.73(4B)
[9] ANZSCO 133211 – someone who plans directs organises controls and coordinates the engineering and technical operations of an organisation
[10] r.2.72(10) or r.2.72(11): r.2.73(4)/(4A
For these reasons the requirements of r.2.72 (3) are met.
Nominator is a standard business sponsor or party to a work agreement
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 Department’s records show that the nominator is a standard business sponsor by agreement from 22 May 2018 to 22 May 2023.
For these reasons the requirements of r.2.72 (4) are met.
Identification of the nominee
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 nominator has identified Mario Lo Giudice, one of the directors of the applicant, as the nominee and who has made a related visa application, also subject to review in the Tribunal.
For these reasons the requirements of r.2.72 (5) are met.
Requirements for existing Subclass 457 visa holders
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.
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
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; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal is satisfied that the nominator has provided the name of the occupation and the relevant ANZSCO code[11] together with details of the location in Western Sydney where the occupation is to be continued.
[11] 133211
For these reasons the requirements of r.2.72 (8A) are met.
Certification relating to conduct under s.245AR (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.
The Tribunal is satisfied that the nominator has provided the requisite certification.
For these reasons the requirements of r.2.72 (8B) are met.
No adverse information known to Immigration
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.
The Tribunal is not aware of any adverse information known to Immigration on the available information about the applicant or a person associated with the applicant and finds accordingly.
For these reasons the requirements of r.2.72 (9) are met.
Specified occupation
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 the relevant instrument[12] and the occupation must be applicable to the person identified in the nomination in accordance with the instrument.
[12] 17/060 commenced 1 July 2017
The Tribunal is satisfied on the available information that the nominated occupation of Engineer Manager is specified in the relevant instrument and is applicable to the nominated person, Mario Lo Giudice.
For these reasons the requirements of r.2.72 (10)(aa) are met.
The Tribunal is not aware in the nominated circumstances in this application of a requirement for the nomination to be supported by a specified organisation, and for this reason, the requirements of r.2.72 (10)(b) are not applicable.
Terms and conditions of employment
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.
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.[13]
[13] r.2.57(3A).
‘Earnings’ is defined [14]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.
[14] in r.2.57A
Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
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 a relevant instrument.
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument[15] : r.2.72 (10)(AB).
[15] Immi 13/028
The Tribunal has had regard to the information provided with the nominator’s submissions to the Tribunal. The salary proposed for the nominee is $138,900. The PayScale[16] recommended salary guide for the occupation is in a range of $74k - $136K, which places the current proposed salary at the top of the estimated range.
[16] Payscale.com
The Tribunal has also had regard to the written contract of employment submitted to the Tribunal and finds it is satisfied that although there is no equivalent Australian performing the same work in the nominated location in Sydney, the terms and conditions of employment are no less favourable than would be offered to an employee performing the job at the same location, and include the relevant provisions applicable in the Fair Work Act for all employees.
For these reasons the requirements of r.2.72 (10)(c) are met.
Base rate of pay
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[17].
[17] 13/028
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 relevant instrument: r.2.72(10AB)[18].
[18] $53,900
The nominee’s earnings are specified in his employment agreement at $138,900.The earnings are greater than the income threshold in the instrument.
The earnings under the terms and conditions of the equivalent Australian citizen or permanent resident are in a range from $74k to $136k.
For these reasons the requirements of r.2.72 (10)(cc) do not apply.
Certification under r.2.72 (10)(e)
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 instrument [19]
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
[19] IMMI 17/060
At hearing, the Tribunal asked questions as to the work performed by the nominee and proposed, and has had regard to the application form lodged. The form must include the requisite certifications as set out in this paragraph.
The Tribunal is satisfied the applicant has completed those certifications and which are contained in the nomination.
For these reasons the requirements of r.2.72 (10)(e) are met.
Position must be genuine
This was the requirement which principally led to the Department’s refusal. Considerable time was spent at hearing to consider whether the role nominated was created to assist a migration outcome, or actually existed in the context of the business operations in Australia, its size and structure.
The Regulation[20]requires that the position associated with the nominated occupation is “genuine”, which is an undefined term. The issue was considered in detail 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 it as described with the application with the occupation nominated, and the actual tasks and duties performed or anticipated, in order to determine whether it was “genuine”.
[20] 2.72(10)(f)
The approach taken is to break down the proposed role and functions of the nominee explained by the nominator, as compared to the generic tasks recommended for an equivalent industry position.
By way of background, the witness/director gave evidence how the nominator’s business was started and grew. It has been operating since at least 1995, where it operated as a business repairing and making auto electrical parts[21]. From that beginning, it developed specialised vehicle parts for mining vehicles, operating underground in hazardous conditions and which required strict safety conditions, with low risk fire products, such as headlights.
[21] MAE –originally Modern Auto Electrical
It now sells those products almost exclusively to South African companies and overseas (including Australia), and specifically for underground mining equipment.
The Tribunal is satisfied as to the following facts and circumstances, which are not in dispute or challenged and which lend significant weight to the application:
·The nominee, currently 61 years’ old, has substantial experience over 30 years in managing the applicant’s products, and building the business in South Africa
·The nominee currently oversees all the company’s operations, where it is the pre-eminent supplier of over 40 flame proof products for coal mining equipment (used underground) in South Africa
·The nominee controls and has responsibility for all the nominator’s intellectual property;
·The nominator’s business is intended to transition to Australia where it can operate in a more stable environment, with less risk from factors outside its control and needs an experienced manager for the purpose;
·The nominee has significant personal expertise as an engineer, without formal training other than as an auto electrician, and as a manager now overseeing all the company’s operations
·The nominee is necessary to set up the company’s quality systems for its Australian operation to grow, meet local regulations and safety standards as prescribed in Australia, and to directly programme the company’s equipment / manufacturing machinery in Australia
·He will train staff to be recruited for the manufacturing operations in Australia
·He is integral to the company’s growth plan over the first 1-2 years of transition to manufacturing in Australia, which will be in the vicinity of $1-2 million over the initial two year period
The Tribunal is satisfied on the director’s evidence that the nominator is committed to transfer its manufacturing operations to Australia because it requires a more stable social and economic environment, and is the best means for it to grow its business. The nominator will continue to operate in South Africa to service local clients, but intends to export product made in Australia, and to other clients outside Australia as well as servicing the existing Australian market.
The director explained that the role involves implementing the company’s transition strategy, a copy of which was supplied with the submissions to the Tribunal and over a 5 year period. The role involves oversight of location strategy, recruiting, engineering and equipment (machinery) and cost and budget management. These tasks are all currently performed by the nominee in the South African context, and intend to be mirrored in the Australian environment.
The Australian operation is small and markets the products here, but is intended to become the principal location for manufacture. The nominee’s role includes research and development, which is an ongoing challenge for the nominator in the mining industry, which looks to continue mainstream automation.
The Tribunal finds it is satisfied that the position is genuine in the Cargo[22] sense, because the qualitative analysis by the director of the role portrays a practical and logical position for an engineering manager, and in the context of an expanded operation in a new environment for a business which is primarily and historically involved in engineering, and making unique products for a very specialised industry.
[22] Cargo First Pty Ltd v MIBP [2016] FCA 30
The Tribunal finds there is no evidence to support a finding that the application is designed to create a migration outcome, for family or any other reason. The business is small, but in order to achieve its objectives, which appear entirely viable based on the company’s lengthy industry experience, the role with the envisaged management tasks described, appears “genuine”.
For these reasons the requirements of r.2.72 (10)(f) are met.
Employment under contract
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, and where the occupation is not exempt from the requirement.
The nominator has supplied a copy of an employment contract as directed, and which appear with the documents submitted in support of the application.
For these reasons the requirements of r.2.72 (10)(h) are met.
Work agreements
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.

The applicant is not a party to a work agreement.
For these reasons the requirements of r.2.72 (11) and (12) are not applicable.
Labour Market Testing
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.
Certain occupations are exempt from Labour Market Testing where specified by the Minister in a relevant instrument.[23] Occupations classified in ANZSCO as Skill Level 1 are exempt.
[23] Immi 13/137
The occupation of Engineering Manager is classified as Skill Level 1 in the medium term skilled occupation list and as such, exempts the application from the requirement.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alan McMurran
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.

[2020] AATA 914

23 March 2020

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Immigration

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