Meridian Caravans Pty Ltd (Migration)

[2022] AATA 22

Meridian Caravans Pty Ltd (Migration) [2022] AATA 22 (4 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Meridian Caravans Pty Ltd

CASE NUMBER:  1827862

HOME AFFAIRS REFERENCE(S):          BCC2017/2986438

MEMBER:Justin Meyer

DATE:4 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 04 January 2022 at 5:00pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – terms and conditions no less favourable than for citizen or permanent resident – salary – no Australian employee performing equivalent work – industry award minimum wage – labour market testing not applicable because of international trade obligation with nominee’s country – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 140GBA, 360(2)(a)

Migration Regulations 1994 (Cth), rr 2.57(3A), 2.57A, 2.72(10)(c), (10AB), 2.73

CASE

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 September 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 19 August 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 the information provided by the applicant indicated that the base salary of the nominee is $54,093 and that the base salary of an Australian citizen or an Australian permanent resident is $57,720. The evidence provided demonstrates that the terms and conditions provided to the nominee are less favourable than an Australian citizen or Australian permanent resident performing the same occupation at the same location. The delegate therefore was not satisfied that the applicant meets paragraph 2.72(10)(c). As a result the delegate was not satisfied that the applicant meets subregulation 2.72(10).

4. After the Tribunal received submissions and further evidence since the applicant’s application to the Tribunal, the Tribunal considered that a hearing was not required. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.

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 reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

   The nomination must comply with the prescribed process

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

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

   a.the applicant nominated a relevant occupation under s.140GB(1)(b) being Cabinet Maker: r.2.73(1A)(a)

   b.the application identified the nominee, Shinya Yoshida, the proposed applicant for a Subclass 457 Visa, as the person who would work in that occupation: r.2.73(1A)(b);

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

   d.the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5)

   e.the applicant has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B), and the nomination includes the locations at which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO code, as well as the relevant certifications mentioned in r.2.72(10): r.2.73(4)/(4A)

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

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

11. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.

12. Departmental records show that Meridian Caravans Pty Ltd has approval as a standard business sponsor, valid from 11 November 2017 to 11 November 2022. As such, this requirement is met.

    Identification of the nominee

13. 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.

14. The application for nomination form submitted to the Department identifies Mr Yoshida as the visa applicant who will work in the nominated occupation. As such, this requirement is met.

    Requirements for existing Subclass 457 visa holders

15. 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.

16. 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

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

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

    ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

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

18. The applicant stated in the nomination application form submitted to the Department that the nominated occupation is Cabinet Maker, with the corresponding ANZSCO code of 394111.

19. The nomination also provides the location at which the nominated occupation is to be carried out, being 2/33 Merri Concourse, Campbellfield Victoria, and meets the requirements of r.2.72(8A).

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

20. 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.

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

    No adverse information known to Immigration

22. 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.

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

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

    Specified occupation

25. 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.

26. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b). The Tribunal is satisfied that this is not the case here.

27. Cabinet Maker and its 6-digit code correspond to an occupation and 6-digit code specified in IMMI 17/060. The applicant stated in the nomination application form submitted to the Department that the nominated occupation is Cabinet Maker, with the corresponding ANZSCO code of 394111.

28. Therefore, the requirements of r.2.72(10)(aa) are met.

    Terms and conditions of employment

29. 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.

30. 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.

31. 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).

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

33. The applicant has supplied an employment agreement, signed 19 August 2017, providing for an annual salary of AUD54,093 for a full time position as cabinet maker. A later employment agreement (2021) confers conditions of AUD35 per hour plus AUD1.01 per hour leading hand allowance = AUD36.01 p/h (AUD71,155.76 p/a) plus 9.5% superannuation. As this is not equal to or greater than AUD250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.

34. The applicant has provided evidence in the form of ASIC documents, financial documents, an organisational chart, an employment contract, a job description, and pay slips.

35. The applicant states:

    ·That it is an industrial designer employed to design caravans (internal and external).

    ·The nominee is required to read computer aided drawings.

    ·It is fundamental that the furniture and cabinets that the nominee builds fit into the caravan.

    ·This fits in with ANZSCO (examining drawings, work orders and sample parts to determine specifications and working from drawings and specifications to make furniture).

    ·During the design phase the purchaser can select the type and quality of timber they wish to use.

    ·The nominee is provided with this information and is required to ensure that the timber/ wood that he selects to use matches the customer’s order. This fits in with ANZSCO (selecting and working with materials such as timber, veneers, particle board and synthetic wood). The nominee in required to mark or outline the dimensions of wood according to the drawing specification. The number one rule for cabinet making is to measure twice and cut once to avoid any mistakes or waste material. The nominee uses chalk and measuring tools to select the area he needs to cut. This fits in with ANZSCO (Mark outline or dimensions of parts on paper according to the drawing specification). If the nominee did not follow this step the timber would be wasted or the dimensions would be incorrect. As mentioned above the nominee builds the fittings for the caravan in the workshop and then assembles them when the caravan is at the appropriate stage of production.

    ·The position description states that the nominee is required to produce angled and curved furniture using solid timber, prepare cutting list from plans and job specifications, measure and draw site layout for manufactured furniture products, read and interpret work documents, determine requirements for installation of cabinets, check and measure fit of cabinets, conduct onsite adjustments to cabinets and components, install fitted cabinets and components, fabricate cabinets. These duties fit in with ANZSCO, which states that a cabinetmaker is required to (assembling parts to form sections of furniture and completed article).

    ·As detailed on the position description the nominee is fitting hinges (caravan doors), locks and couches and drawers. This fits in with ANZSCO (fitting hinges, locks, catches, drawers, and shelves, making frames for chairs and couches, may repair and refurbish furniture and antiques. The company specialises in building new luxury caravans and at times the repair or refurbishment of existing caravans. Due to the nature of the business it needs to employ trade workers such as a cabinet maker to fit out and repair the inside of the caravans to meet our client’s requirements. It has recently been awarded new contracts and our production schedule is fully booked out until April 2022. It has provided a sales projection plan, recent financial statements and a premises expansion plans and production schedule. The purpose of providing these documents is to demonstrate that it is successfully operating and trading. According to ANZSCO, a cabinet maker may make fittings for boats, caravans, and other items where fine detail is required). The nominee will only be making fittings for caravans.

36. The Tribunal is of the view that the nominee’s terms and conditions of 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. His income is almost AUD20,000 more than minimum income specified above. There is nothing to suggest that there is an equivalent colleague who earns more for this work. Another employee had higher duties and a supervisory role of an apprentice and this is not comparable.

37. Therefore, the company has no Australian employee performing equivalent work at the same location. Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113. 

38. IMMI 09/113 sets out that if there is a fair work instrument, state industrial instrument or transitional instrument that applies or would apply to Australian citizens or Australian permanent residents in the same workplace at the same location and would apply to the person identified in the nomination, then the terms and conditions of employment set out in that instrument are the terms and conditions that would be provided to an Australian citizen or Australian permanent resident to perform equivalent work.

39. The Tribunal has determined that as the business operates in the building industry, employees would be covered by the Building and Construction On-site Award 2010. Based on the description of the nominee’s duties outlined in the contract of employment and provided by the applicant in submissions, the nominee would be classified a full time employee within a level specified in a table who will be paid not less than the rate assigned to the appropriate classification, a minimum annual wage of AUD42,224 and maximum of AUD 54,724.80.

40. The Tribunal is satisfied that the contract of employment provides for annual leave and personal leave in accordance with the fair work instrument and superannuation as per the Superannuation Guarantee (Administration) Act 1992.

41. Due to the requirements set out in IMMI 09/113, the rate set in the Building and Construction On-site Award 2010 is taken to be the terms and conditions that would be provided to an Australian citizen or permanent resident to perform equivalent work.

42. At the time of application, the nominee was earning above the TSMIT which was AUD53,900 and was also paid the market salary rate. His payslips in June/July 2019 indicate that he earned an annualised gross wage of AUD67,782, not inclusive of compulsory superannuation. 

43. The Tribunal notes that the size and nature of the business would attract a higher than minimum salary. This supports a finding that the position would attract a salary above the TSMIT.

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

    Base rate of pay

45. 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 09/113

46. 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: reg 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: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.

47. Likewise, the requirement in reg 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 09/113 reg 2.72(10AB).

48. The nominee’s annual earnings are; AUD67,782

49. The annual earnings are equal to or greater than the income threshold specified in the instrument for reg 2.72(10AB).

50. There is not an equivalent Australian citizen or permanent resident to assess annual earnings and base rate of pay, as earlier discussed .  

51. For these reasons the requirements of reg 2.72(10)(cc) are met

    Certification under reg 2.72(10)(e)

52. As part of the nomination, the applicant must certify various matters in writing: reg 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

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the instrument; and

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

1. Having viewed the nomination application the Tribunal is satisfied that the relevant certifications for the above matters have been made in the nomination form.

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

   Position must be genuine

3. 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.

4. The Tribunal has read an extensive description of the applicant’s caravan construction business. Mr Shinya Yoshida is seen in photographs working tin the business. Its operations are described in detail on its website. Its financials reveal an active business with considerable turnover.

5. The Tribunal accepts that a  caravan maker of the size and nature of the business would require a cabinet maker to perform the tasks outlined in the ANZSCO occupational dictionary and finds that the position is genuine.

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

   Employment under contract

7. 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, Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a written instrument.

8. The applicant has submitted to the Tribunal an employment contract for the nominee, dated 13 April 2021, setting out the main terms and conditions of employment.

9. I find on the basis of the evidence before me that r.2.72(10)(h) is met.

   Work agreements

10. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 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 the applicant, these must have been met.

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

    Labour Market Testing

12. 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 ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

13. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:

    ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

14. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

15. The nominee is a citizen of Japan. The Tribunal notes that requiring LMT would be inconsistent with an international trade obligation. The Tribunal confirms that Item 6 of LIN 18/183 identifies the Japan-Australia Economic Partnership as an international trade obligation of Australia. The Department's website notes that LMT is not required for a nomination for a Subclass 457 visa where the worker nominated is a citizen of Japan. Based on the evidence before it, the Tribunal is satisfied that the nominated position is LMT exempt.

16. Therefore, based on the evidence before it, the Tribunal is satisfied that the labour market testing condition does not apply to the applicant in this case.

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

    DECISION

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

    Justin Meyer
    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.