Pawan Soni and Staytira Soni ATF Joshila Trust (Migration)

[2021] AATA 451

Pawan Soni and Staytira Soni ATF Joshila Trust (Migration) [2021] AATA 451 (25 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pawan Soni and Staytira Soni ATF Joshila Trust

CASE NUMBER:  1836328

HOME AFFAIRS REFERENCE(S):          BCC2017/3867523

MEMBER:K. Chapman

DATE:25 February 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 25 February 2021 at 4:08pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – specified occupation and genuine position – job tasks – previous nomination application specifying another occupation – change of position and tasks – business income recovering after COVID-19-related decline and expansion of operations – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 359(2)

Migration Regulations 1994 (Cth), r 2.72(10)(aa), (f)

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 21 November 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, Pawan Soni and Staytira Soni ATF Joshila Trust T/A Simply Perfect Wholesale, applied for approval on 20 October 2017. The applicant nominated Mr Manmeet Singh Kahlon (‘the nominee’) in the occupation of Customer Service Manager, which is coded as number 149212 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant’s commercial activities primarily focus on the sale of produce on a wholesale basis in Brisbane.

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 delegate decided not to approve the nomination on the basis that the applicant failed to satisfy r.2.72(10)(f), due to a lack of satisfaction that the position associated with the nominated occupation of Customer Service Manager is genuine. On 11 December 2018, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.

5. On 9 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, photographs, taxation information, market salary information, an organisational chart, standard business sponsorship approval, human resources information 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 owner Mr Pawan Soni, appeared by telephone before the Tribunal on 5 February 2021 to give evidence and present arguments. Mr Soni, on behalf of the applicant, confirmed that he was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by its registered migration agent. Following the review hearing, the Tribunal received further financial records submitted by the applicant. They have 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 Customer Service Manager (ANZSCO 149212) to be performed by Mr Manmeet Singh Kahlon, 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 2 November 2016 to 2 November 2021.

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 Mr Manmeet Singh Kahlon 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 Customer Service Manager (ANZSCO 149212) 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 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. The applicant nominated the occupation of Customer Service Manager, which is coded as number 149212 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 17/060. They are:

    ·     Item 2 – the position has a nominated base salary of less than AUD65,000;

    ·     Item 11 - The position:

    (a) is based in a front‑line retail setting; or

    (b) predominantly involves direct client transactional interaction on a regular basis; and

    ·     Item 19 – the position is in a business that has an annual turnover of less than AUD 1,000,000.

31. The applicant, through its owner Mr Soni, gave detailed oral evidence indicating that the business primarily supplies fruit and vegetable produce on a wholesale basis to many restaurants operating in the Brisbane area. Although the business premises is located in a market complex, it does not sell produce to retail consumers at that location. According to Mr Soni, the applicant business is developing a home delivery retail arm, however the wholesale operation is its primary focus. Mr Soni outlined that the nominee is genuinely employed as a Customer Service Manager, citing his duties inter alia as supervising relevant staff, maintaining quality assurance for produce orders, liaising with suppliers regarding fulfillment of customer requirements and engaging in after sales service. Mr Soni highlighted the perishable nature of the produce sold by the business and the nominee’s role in ensuring continued customer satisfaction. Mr Soni confirmed to the Tribunal that the nominee does not purchase produce from suppliers, he does not transact with customers and nor does he conduct deliveries of produce.

32. The Tribunal canvassed with Mr Soni that a previous application for nomination of the nominee was refused in the occupation of Retail Buyer. Mr Soni explained to the Tribunal that initially the nominee was trialled in that occupation, however he was not best placed to continue in the role as the purchasing of produce requires a niche skill set and considerable experience. In due course, Mr Soni took back the duties of purchasing the produce from suppliers and the nominee transitioned to the Customer Service Manager position when the previous occupant departed that role. Additionally, Mr Soni was unaware of other nomination applications made, attributing them to a previous registered migration agent on the record. On balance, the Tribunal accepts Mr Soni’s explanation of the applicant’s history of nomination applications.

33. Mr Soni advised the Tribunal that the applicant business turned over approximately $2.5 to $3 million per annum prior to the COVID-19 pandemic, then suffered a decline in trade as restaurants minimised their own trading activities. He added that in recent times, the applicant business has recovered to have turnover exceeding $1 million per annum. Further, Mr Soni explained that the applicant business is pursuing additional lines of operation, including the home delivery of produce to retail customers. The Tribunal notes that significant financial documentation, in particular taxation and accounting records, was submitted to confirm that the applicant business is viable with the aforementioned turnover results.    

34. Mr Soni detailed to the Tribunal how the applicant business advertised for the position of Customer Service Manager when the previous incumbent departed the role, with the nominee securing the position on merit. He also outlined that the nominee’s salary was determined having regard to market salary information. The Tribunal notes that Mr Soni’s evidence at the review hearing is consistent with the submitted documentary material such as the organisational chart, financial and taxation information, employment contract and photographs. It is apparent to the Tribunal that the applicant has the financial capacity to sustain the nominated position and that this position is consistent with the size and scope of its commercial activity.

35. The Tribunal finds that the submitted evidence confirms the nominee is working in the occupation of Customer Service Manager (ANZSCO 149212). It is apparent that the nominee performs the full suite of duties associated with that occupation as defined in ANZSCO and he is providing valuable service to his 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 Customer Service Manager (ANZSCO 149212) 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 not based in a front‑line retail setting, nor does it predominantly involve direct client transactional interaction on a regular basis. Furthermore, the Tribunal is satisfied that the nominee’s salary is $65,000 per annum and that the applicant business has turnover exceeding $1 million per annum. 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 employing only one Customer Service Manager. The nominee’s terms and conditions of employment are evidenced in his submitted employment contract dated 8 May 2017, which indicates he receives a base annual salary of $65,000. The Tribunal observes that this salary is consistent with the available market salary information for the occupation of Customer Service Manager (ANZSCO 149212).

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 $65,000 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 Customer Service Manager (ANZSCO 149212) as defined in ANZSCO and that he 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 he 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 Customer Service Manager (ANZSCO 149212) is genuine.

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

    Employment under contract

1. 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.

2. The applicant submitted a copy of the employment contract dated 8 May 2017 with respect to the nominee and the Tribunal is satisfied that he continues to be employed pursuant to it.

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

   Work agreements

4. 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.

5. 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

6. 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.

7. 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.

8. The Tribunal notes that the nominated occupation is Customer Service Manager (ANZSCO 149212). 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 holds suitable qualifications and possesses appropriate experience for the nominated position. Therefore, the skill and occupational exemption in s.140GBC(3) is satisfied.

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

   DECISION

10. 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.