MS Charcoal Pty Ltd (Migration)

[2021] AATA 2393

MS Charcoal Pty Ltd (Migration) [2021] AATA 2393 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MS Charcoal Pty Ltd

CASE NUMBER:  1812788

HOME AFFAIRS REFERENCE(S):          BCC2018/971465

MEMBER:K. Chapman

DATE:10 May 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 10 May 2021 at 4:33pm 

CATCHWORDS
MIGRATION–nomination –Chef – nomination of the occupation is not precluded by an inapplicability condition – position associated with the nominated occupation of Chef (ANZSCO 351311) is genuine – applicant was approved as a standard business sponsor –decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR, 359
Migration Regulations 1994, rr 1.13, 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 April 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (‘the Act’) and r.2.72 of the Migration Regulations 1994 (‘the Regulations’).

2. The applicant, MS Charcoal Pty Ltd, applied for approval on 28 February 2018. The applicant nominated Ms Youngeun Lee (‘the nominee’) in the occupation of Chef, which is coded as number 351311 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant operates the Mien Korean Style Chinese Restaurant.

3. 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.

4. The nomination was not approved on the basis that the applicant failed to satisfy r.2.72(10)(aa) because the delegate was satisfied that the nominated occupation is subject to an inapplicability condition (or ‘caveat’) pursuant to Instrument IMMI 18/004. On 3 May 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.

5. On 23 October 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response, the Tribunal received material including, but not limited to, taxation records, Business Activity Statements, ASIC records, position description, organisational chart, photographs, floorplan, standard business sponsorship approval and an employment contract. The Tribunal notes that it had far greater relevant documentary evidence before it than was available to the delegate. All material received has been duly considered by the Tribunal.

6. The applicant, through its Director Mr Junwoo Park, appeared by telephone before the Tribunal on 20 April 2021 to give evidence and present arguments. Mr Park, on behalf of the applicant, confirmed that he was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. Mr Park confirmed he understood the interpreting service. The applicant was represented in relation to the review by their registered migration agent. Following the review hearing, the Tribunal received a copy of recent Financial Statements, Taxation records and a Business Activity Statement demonstrating the financial viability of the applicant. Written submissions were also lodged. This post-hearing material has been duly considered.

7. 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

8. 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). In addition, for nominations made from 23 November 2013, s.140GBA must be met.

   The nomination must comply with the prescribed process

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

10. The applicant lodged their application for nomination identifying the occupation of Chef (ANZSCO 351311) to be performed by Ms Younguen Lee, who is an applicant for a Subclass 457 visa. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form identifying a location in the Brisbane area where the occupation will be carried out, was accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act. Further, the Tribunal is satisfied that the applicant is a standard business sponsor and the nomination identifies the six digit ANZSCO code for an occupation contained in a legislative instrument as an approved occupation for the purpose of the Subclass 457 visa.

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

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

12. 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.

13. The applicant submitted a copy of their Sponsorship Approval Notice confirming they are an approved standard business sponsor for the period 24 February 2021 to 24 February 2026.  

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

    Identification of the nominee

15. 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.

16. Having regard to the application for nomination and supporting documentary evidence, the Tribunal is satisfied that the applicant identified Ms Youngeun Lee as the visa applicant who will work in the nominated occupation.

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

    Requirements for existing Subclass 457 visa holders

18. 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.

19. 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

20. 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.

21. The Tribunal finds that the applicant has identified the occupation of Chef (ANZSCO 351311) and a location in the Brisbane area where it will be carried out.

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

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

23. 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.

24. The Tribunal is satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.

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

    No adverse information known to Immigration

26. 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.

27. There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.

28. For these reasons the requirements of r.2.72(9) are met.

    Specified occupation

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

30. The applicant nominated the occupation of Chef, which is coded as number 351311 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The aforementioned occupation has attached to it inapplicability conditions (or ‘caveats’) in accordance with instrument IMMI 18/004. They are:

    ·     Item 7 – the position is involved in mass production in a factory setting; and

    ·     Item 8 – the position is in a limited service restaurant.

31. The applicant, through its director Mr Park, outlined the operations of the Mien Korean Style Chinese Restaurant in a manner consistent with it being a full service restaurant. He advised that the Restaurant has table service, a liquor licence, caters for dietary requirements and has meals cooked to order by the kitchen staff under the supervision of the nominee as Head Chef. He informed the Tribunal that the bulk of the applicant’s sales are the cooked to order meals which are served with full table service and the bill is paid following the meal by the customer. According to Mr Park, the nominee manages the other Cooks in the kitchen, creates additions to the menu, orders stock and cooks ordered meals using fresh ingredients. Mr Park described the nominee as a very experienced Chef who is well trained in Korean cuisine cooked in the Chinese style. In particular, her speciality is preparing noodle dishes. These are well received by the applicant’s customers and create a competitive advantage in the market according to Mr Park.

32. Mr Park informed the Tribunal that the nominee was first hired in response to a job advertisement and she is not related to any person running the applicant company. Further, he explained that the nominee is well qualified for the role and is a critical employee at the Restaurant. Of note, Mr Park indicated that it was difficult to recruit domestic applicants to positions at the Mien Korean Style Chinese Restaurant given the need for skills to cook Korean cuisine in the Chinese style.

33. Mr Park also explained the duties of the nominee in comprehensive detail and in a manner consistent with the ANZSCO description of the duties for the occupation of Chef. The Tribunal notes that Mr Park’s evidence at the review hearing is consistent with the submitted documentary material such as the position description, financial and taxation information, photographs and organisational chart. It is apparent to the Tribunal that the applicant now has the financial capacity to sustain the nominated position and that this position is consistent with the size and scope of its commercial activity.

34. The Tribunal has carefully considered the evidence pertaining to the Mien Korean Style Chinese with respect to the nature of its operations. Whilst finely balanced, the Tribunal is satisfied that this establishment is a full service restaurant. The Tribunal is so satisfied given the submission of detailed photographic evidence, in combination with the evidence of Mr Park at the review hearing.

35. The Tribunal finds that the submitted evidence confirms the nominee is working in the occupation of Chef (ANZSCO 351311) in a full service restaurant which utilises a commercial kitchen. It is apparent that the nominee performs the full suite of duties associated with that of a Chef as defined in ANZSCO and is providing valuable service to her employer in this occupation. Further, the Tribunal is satisfied that the nominee possesses sufficient practical experience to appropriately perform the nominated occupation.

36. The Tribunal is satisfied that the position associated with the nominated occupation is in fact that of a Chef (ANZSCO 351311) and that it is genuine. Following careful consideration of the evidence, the Tribunal accepts that at the time of this decision the nominated position is neither involved in mass production in a factory setting or in a limited service restaurant. Therefore, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition.

37. For the above reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

38. 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.

39. 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.

40. 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).

41. The Tribunal notes that the submitted evidence points to the applicant company having only one Head Chef position in its restaurant. The nominee’s terms and conditions of employment are evidenced in her submitted employment contract dated 6 November 2020, which indicates she receives a base annual salary of $60,000. The Tribunal observes that this salary is consistent with the available market salary information for the occupation of Chef (ANZSCO 351311).

42. Following careful consideration of the evidence, the Tribunal finds 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.

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

    Base rate of pay

44. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028, which specifies the relevant amount as $53,900.00.

45. Following careful consideration of the evidence, the Tribunal is satisfied that the base rate of pay of the nominee is equal to that which would be provided to an Australian citizen or Australian permanent resident employee performing equivalent work at the same location. As the base rate of pay of the nominee is $60,000 per annum, it is greater than the current TSMIT. The Tribunal is therefore satisfied that r.2.72(10)(cc) is met.

    Certification under r.2.72(10)(e)

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

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument;

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

47. The applicant lawfully operates a business within Australia and the Tribunal is satisfied that it truthfully made the necessary certifications in the application for nomination. 

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

    Position must be genuine

49. 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.

50. For reasons previously expressed, the Tribunal is satisfied that the nominee will perform the role of a Chef (ANZSCO 351311) as defined in ANZSCO and that she will not perform a lower level occupation. Following careful consideration of the evidence, the Tribunal is satisfied that the nominee’s position is consistent with the size and scope of the applicant’s business, and that she is legitimately employed to fill a position that cannot be filled from the domestic labour market. Accordingly, the Tribunal finds that the position associated with the nominated occupation of Chef (ANZSCO 351311) is genuine.

51. Therefore, the requirements of r.2.72(10)(f) are met.

    Employment under contract

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

53. The applicant submitted a copy of the employment contract dated 6 November 2020 with respect to the nominee and the Tribunal is satisfied that she continues to be employed pursuant to it.

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

    Work agreements

55. 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 the applicant, these must have been met.

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

    Labour Market Testing

57. 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.

1. 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.

2. The nominee, Ms Youngeun Lee, is a national of South Korea. Ministerial Instrument LIN 20/029 provides that the labour market testing condition is inconsistent with the Korea-Australia Free Trade Agreement (KAFTA) for the purposes of s.140GBA(1)(c). Accordingly, the labour market testing requirements in s.140GBA are not applicable.

3. For the sake of completeness, the Tribunal notes that the nominated occupation is Chef (ANZSCO 351311). This occupation is classified as Skill Level 2 in ANZSCO, with such occupations being specified for the purposes of the occupational exemptions in s.140GBC(4)(b): IMMI 13/137. The relevant occupation description in ANZSCO provides that generally the minimum required qualification for the position is a Diploma. The Tribunal is satisfied the nominee is a fully qualified Chef, with appropriate experience for the nominated position. Therefore, the skill and occupational exemption in s.140GBC(3) is satisfied.

4. Accordingly, the applicant meets all the applicable criteria for the nomination to be approved.

   DECISION

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

   K. Chapman
   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.