Nickal Pty Ltd (Migration)

[2022] AATA 243

Nickal Pty Ltd (Migration) [2022] AATA 243 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Nickal Pty Ltd

REPRESENTATIVE:  Mr Andrzej Kurowski (MARN: 0321519)

CASE NUMBER:  1901238

HOME AFFAIRS REFERENCE(S):          BCC2018/908208

MEMBER:Peter Emmerton

DATE:2 February 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 02 February 2022 at 12:50pm

CATCHWORDS
MIGRATION – application for approval of nomination of occupation – terms and conditions no less favourable than for citizen or permanent resident performing equivalent work – supporting information provided to tribunal – earnings and non-monetary benefits in line with market expectations – nominee’s qualifications, experience and tasks – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.57(3A), 2.57A, 2.72(10)(c), (10AA), 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 31 December 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 26 February 2018. 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 that the applicant did not satisfy 2.72(10)(c) because they were not satisfied that sufficient evidence had been provided to demonstrate that the terms and conditions that are provided or would be provided will be no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident for performing equivalent work at the same location.

4. The applicant was represented in relation to the review.

5. 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

6. 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

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

8. The nominator / applicant Nickal Pty Ltd, lodged a nomination approval on 26 February 2018, for an ICT Support Technician nec, ANZSCO: 313199. The nominee / visa applicant was Mr Rakesh Chandra Rai, and his most recent contract shows the base rate of pay is $70,000, per annum plus superannuation guarantee at a current rate of 10% as of 1 November 2021.

9. Based on the evidence (including in the 457 Nomination form), the Tribunal accepts the applicant is nominating an occupation under .140GB(1)(b): r.2.73(1A)(a); that the applicant has identified in the nomination a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b); that the nomination was made using the approved form and fee; that the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5); that the applicant has provided a certification they had not engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and that the nomination includes the location at which the occupation will be carried out, and the name and 6 digit ANZSCO code of that occupation.

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. Based on the evidence in the 457 nomination form and Departmental records, the Tribunal is satisfied the nominator Nickal Pty Ltd is a Standard Business Sponsor. Their current 5-year SBS expires 11 May 2023.

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

    Identification of the nominee

14. 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.

15. Based on the evidence in the 457 Nomination form, the Tribunal is satisfied the applicant has identified in the nomination, the proposed applicant for the visa who will work in the nominated occupation.

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

    Requirements for existing Subclass 457 visa holders

17. 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.

18. Based on the evidence in the 457 Nomination form and departmental information, the Tribunal is satisfied the visa applicant is not an existing Subclass 457 visa holder.

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

    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, in this case the name of the occupation is ICT Support Technician nec, ANZSCO: 313199.

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

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

22. 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. Based on the evidence in the 457 Nomination form, the Tribunal is satisfied the nominator has certified in writing they had not engaged in conduct, in relation to the nomination, that constitutes 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. The Tribunal is not aware of any adverse information known to Immigration about the applicant or 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 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

30. Based on the evidence, the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument (IMMI 17/060). No inapplicability conditions were specified in the relevant instrument. Further, the evidence contained in the Department file, has satisfied the Tribunal the occupation is applicable to the person identified in the nomination.

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

32. There is no requirement for the nomination to be supported by a specified organisation.

33. For this reason, the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

34. 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.

35. 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.

36. 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). That relevantly stated:

    2 Methodology

    For subregulation 2.72(10AA), the method is:

    (2). … the terms and conditions of employment that would apply to Australian citizens and Australian permanent residents to perform equivalent work in the same workplace in the same location must be determined with regard to relevant information.

37. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB). That relevantly stated:

    (3).SPECIFY, for the purposes of subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of the Regulations, annual earnings of AUD 250,000.

38. As noted above, the base rate of pay for the nominated occupation is stated in the contract of employment to be $70,000 per annum plus 10% Superannuation. Therefore, the terms and conditions of employment must be assessed. The Tribunal has researched remuneration for similar positions and is satisfied that the stated earnings are in-line with current market expectations and fall within the mid-quartiles of similar roles in the stated location. The Tribunal has viewed the most recent employment contract dated 1 November 2021, which sets out the specific terms and conditions of service for the nominated position. It has in addition perused the current relevant Industry Award.

39. The Tribunal also acknowledges and accepts as reasonable, the remuneration assessment information gathered by the nominator and provided to the Tribunal.

40. The Tribunal notes that the delegate refused the nomination because they were not satisfied that sufficient evidence had been provided to demonstrate that the terms and conditions that are provided or would be provided will be no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident for performing equivalent work at the same location. The Tribunal has been provided with substantially more supporting information than was provided to the delegate at the time of their decision.

41. After considering same, the Tribunal is 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.

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

    Base rate of pay

43. 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. That relevantly stated:

    2. SPECIFY, for the purposes of paragraph 2.72(10)(cc) of the Regulations, that the temporary skilled migration income threshold is AUD 53,900

44. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

45. Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB).

46. As noted above, the base rate of pay is $70,000 per annum. Therefore, based on all the evidence before it, the Tribunal is satisfied the base rate of pay under the terms and conditions of employment that would be provided to an Australian citizen or permanent resident are greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.

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

48. Certification under r.2.72(10)(e)

49. 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 - (see 457 Nomination application form)

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant - (see 457 Nomination application form)

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO – (see 457 Nomination application form and nominee’s Resume’)

50. Therefore, the requirements of r.2.72(10)(e) are met.

    Position must be genuine

51. 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.

52. The nominated occupation is for an ICT Support Technician nec, ANZSCO: 313199. In their decision the delegate did not state that the duties of the nominated position appeared to be inconsistent with the role as described in ANZSCO. It once again notes that substantially more information has been provided to it, than was afforded the Delegate. The Tribunal has studied and compared the ANZSCO description of the role, the core competencies detailed in the nominee’s Resume’ and the job description. It is satisfied that there is substantial correlation across all 3 documents. The Tribunal also notes that the original application was first made four years ago, and that the incumbent has been growing in experience and subsequent value to the organisation throughout that time.

53. The Tribunal notes that this is a substantially sized and growing business which has successfully recovered from the effects of the Covid-19 pandemic experienced in the FY 2020.

54. The Tribunal also has regard for the documents provided demonstrating the need for the role, the correlation between the visa applicant’s qualifications, experience and the relative importance of the position.

55. The Tribunal also acknowledges the Organisation Chart demonstrates the fact that the visa applicant has no staff reporting to them and he reports directly to the Chief Financial Officer. It is obvious when you consider the magnitude of the operation, its’ expansion and the relative position of the visa applicant in the reporting structure that he is a team member in a key role.

56. Based on all of the information before the Tribunal, it is satisfied the nominator’s business is sufficiently large and complex to benefit from a suitably qualified person engaged as an ICT Support Technician nec, ANZSCO: 313199. It is reasonable to assume that this role is essential in the current technological leveraged world. The Tribunal is therefore satisfied the position associated with the nominated occupation is genuine.

57. The Tribunal has also considered the challenges associated with recruitment and retention in this regional location and the substantial reliance the organisation has upon the incumbent. The Tribunal is cognisant of the challenging recruitment and retention challenges associated with such skilled roles in the current low immigration and the highly competitive demand driven workforce environment resultant from the effects of the Covid-19 pandemic.

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

    Employment under contract

59. 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.

60. As noted above, the ‘contract’, setting out the specific terms and conditions of service for the nominated position has been lodged.

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

    Work agreements

62. 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.

63. The Tribunal has no evidence before it that the applicant is a party to a work agreement.

64. For these reasons the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

65. 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.

66. 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 18/059. 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.

1. 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.

2. The Tribunal notes that major disaster or skill and occupational exemptions in ss 140GBB-140GBC do not apply.

3. Labour market testing conditions do not apply to the applicant as it would be inconsistent with an international trade obligation specified in the relevant instrument, LIN 21/075.

4. The Tribunal notes however that evidence was provided which adequately demonstrates that had labour market testing been required, the requirements as stated in paragraph 67 of this decision would have been met by the nominator.

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

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

   DECISION

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

   Peter Emmerton

   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.