Q&K Family Trust trading as Penny Kha & Associates Pty Ltd (Migration)

[2021] AATA 3993

Q&K Family Trust trading as Penny Kha & Associates Pty Ltd (Migration) [2021] AATA 3993 (4 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Q&K Family Trust trading as Penny Kha & Associates Pty Ltd

CASE NUMBER:  1826154

HOME AFFAIRS REFERENCE(S):          BCC2017/2534589

MEMBER:Danielle Galvin

DATE:4 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 04 October 2021 at 4:30pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Computer Network and Systems Engineer – genuine position – nominee working for the applicant part time – tasks of the position correspond to nominated occupation – limited evidencing of the nominee performing the role – updated financial information – previously undisclosed family relationship of the nominee – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 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 21 August 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, PENNY KHA & ASSOCIATES PTY LTD AFT Q&K FAMILY TRUST, applied for approval on 17 July 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.

3. The nominee is named Quoc An Ly and nominated in the proposed occupation of Computer Network and Systems Engineer (ANZSCO 263111).

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the requirements of r.2.72(10)(c) as, based on the evidence before them, the applicant had not established that the terms and conditions of employment of the person identified in nomination will be no less favourable than the terms and conditions that are provided, or would be provided to an Australian citizen or permanent resident for performing equivalent work at the same location. The delegate found that the proposed salary of $55,000 as stated in the application was less favourable than the range of $70,000-$90,000 that would be expected to be paid to an Australian citizen or permanent resident.

5. The Tribunal had access to the following documents from the Department:

   ·Nomination for a Temporary Business Entry Visa stating that the base rate of earnings will be $55,000 for a 40-hour week. In the application the applicant stated that the nominee does not have an existing relationship with any of the owners, directors or principals of the applicant’s business and certified that THE POSITION HAD not been created to secure a migration outcome;

   ·Organisational chart for the applicant showing Penny Kha as the practicing accountant director with 6 accountants below with 3 receptionist accounts people,1 person in account auditing and the nominee as IT support;

   ·Employment contract between the applicant and nominee dated 24/6/17 stating that for a 40 hour week the nominee will earn $55,000 gross plus superannuation;

   ·Draft financial statement for the applicant FYE 30/6/17;

   ·ASIC search extract of applicant company showing ACN 105 736 329;

   ·JOBOUTLOOK extract for computer network professionals;

   ·Applicant’s letter to the Department dated 24/6/17 stating that the IT support person, the nominee, works part time since 2015 and requesting the granting of a subclass 457 visa, having graduated in 2017 from Deakin University;

   ·Fairwork Omudsman as at 29/10/17 for a graduate professional as part-time $24.37 per hour and as casual $30.46 per hour;

   ·Applicant’s letter to the Department dated 11/11/17 mis stating that for full time work the rate is $24.37 per hour ($50,690pa) but agreed to pay $55,000 plus super. The letter refers to SEEK adds for senior systems engineers in Melbourne as having a salary range of $70,000 to &89,999 and the lessor amount on offer was due to the nominee having just graduated. The letter adopts the tasks as listed by ANZSCO;

   ·Seek extracts for IT technician as at 30/6/17 full time $50,000-$60,000;

   ·Nominated position description for the nominated role;

   ·Fair work pay guide 28/6/17 regarding graduate pay levels stating for full time and part time the rate is $24.37 per hour;

   ·SEEK add 6/5/17 for an ICT technician/computer technician, 23/4/17 ITtechnician, 17/5/17 Junior systems/network administrator, 27/10/17 senior systems engineer $70,000-$90,000, 20/10/17 systems engineer $70,000-$90,000;

   ·Draft PAYG summary FYE 30/6/17 showing 14 employees with the highest salary $68,791 gross and nominee $ 20,183;

   ·Monash Institute tax invoice dated 8/12/15 for $1050 addressed to applicant company for training plan;

   ·Application to the Department dated 24/7/17 claiming 8 employees and a base rate for the nominee of $55,000 for 40 hour week plus super (nominee does not hold a 457 visa) and claims that the salary is the market rate for positions in the nominated occupation in the location where the applicant operates.

6. On 17 March 2021 the Tribunal wrote to the applicant at the address provided in the review application and invited the applicant to provide current and updated information by 31 March 2021.

7. On 31 March 2021 the Tribunal received submissions from the applicant’s agent attaching numerous documents. The submission states that the employment contract shows that the nominee is paid $38.44 per hour for a 38 hour week which amounts to $75,957 per annum which is an increase from the amount stated in the application to the Department. It claims that the salary range for “Computer Network and Systems Engineer is between $55,000-$85,000 per annum and claims, as nominee graduated in 2017, is in keeping with market rate (r.2.72(10AA). In relation to ANZSCO it is submitted that the tasks to be performed by the nominee align with those listed in ANZSCO and that the business uses a wide range of complex hardware and software (r.2.72(10)(aa).The submission also states that the business has 13 employees working and they use computer systems and therefore need someone with advanced knowledge of computer networking and security due them dealing with sensitive information r.2.72(10)(f).

   ·ABN Lookup for The trustee for Q&K family trust (ABN 40 167 984 047) naming the entity as the trustee and trading name as Penny Kha & Associates Pty Ltd;

   ·ASIC current and historical extract for Penny Kha & Associates Pty Ltd (ACN 105 736 329) as at 17/3/21 and the sole director is Penny To Phuong Kha;

   ·Department letter to the applicant dated 25/3/21 sponsorship approval;

   ·ATO for the Q&K Family Trust and BAS for the company;

   ·Draft financial report for Penny Kha &Associates Pty Ltd ITF Q&K family trust (ABN 40 167 984 047);

   ·organisational chart showing Penny Kha as the director/accountant and 5 accountants, the nominee as IT support and network security, 4 assistant accountants and 2 receptionists;

   ·List of tasks (consistent with ANZSCO);

   ·Nominee’s Bachelor of Information Technology 4/10/17;

   ·Employment contract 1/4/21 remuneration is $38.44 per hour for min 38 hours per week;

   ·Fair work Omudsman professional level 4 full-time  $38.44 per hour as at 1/1/21

   ·SEEK add 10/1/20 $55,000-$59,999 network support engineer, INDEED 30/3/21 computer network and system engineer $60,000, $65,000-$85,000;

   ·ABN Lookup The trustee for Q&K family trust;

   ·ASIC extract for Penny Kha & Associates Pty Ltd (CAN 105 736 329) AND ABN 82 105 736 329

8. The applicant was represented by Ms Penny Kha, the sole director of the company, who appeared before the Tribunal on 6/7/21 to give evidence and present arguments. The nominee, Mr Ly, also attended.  

9. The applicant was represented in relation to the review by its registered migration agent, Mr Tran.

10. Ms Kha gave evidence that the company was the approved sponsor and was the entity behind the application. She referred to the trust of which the company is a trustee. The Tribunal requested a copy of the trust deed establishing this arrangement. Ms Kha explained that as the nominee is now qualified and has been working part time for her since 2015 she has entered into a new employment contract to reflect this and Mr Ly’s hourly rate is now $38.44 per hour which amounts to $75,957 per annum . When asked Ms Kha advised that Mr Ly is her first cousin and that her failure to state this in the application to the Department was an error brought about by stress associated with an on-going back issue.

11. Ms Kha stated that her father sponsored Mr Ly whilst a student studying for his degree and that he worked part time for her as they had not been able to fill an advertised position for the IT role. She was of the view that the occupation may be exempt from labour market testing given its nature.

12. She stated that Mr Ly performs tasks associated with the nominated role by reference to the ANZSCO listed tasks and stated that she would provide evidence of the actual role being performed. Ms Kha relies on Mr Ly to perform the IT role and would be distressed if the application was unsuccessful.

13. The Tribunal allowed the applicant until 30 July 2021 in which to make further written submissions to the Tribunal and provide further documents in support.

14. On 30 July 2021 the agent for the applicant sent submissions to the Tribunal. It was submitted that as the nomination was lodged on 17 July 2017 the business is exempt from needing to meet Labour Market Testing requirements. It claims that under s.140GBA(2) and IMMI 14/107 PART 2(G) The Asian-Australian-New Zealand Free Trade Agreement includes Vietnam and the nominee is from Vietnam and therefore the applicant is exempt and s.140 GBC (2)(I) indicates that a bachelor degree is the basis for a further exemption. The submission also states that the nominee’s salary is at least market rate , the nominee’s tasks are aligned to ANZSCO and “The business is quite a large small business, using electronic systems to handle sensitive information, it is best to have Quoc An Ly as employee with advanced knowledge of computer networking and security to manage its systems”. Attached were the following documents:

    ·30/7/21 letter from the applicant  to the Tribunal confirming that the nominee had been employed part time as a Computer Network and Systems Engineer since July 2015 and the nominee’s role is to ensure that systems run smoothly re lodging tax returns, system update and security to comply with the ATO’s requirements. The letter states that during the COVID-19 period this support has increased as employees are working from home. The nominee is the only IT employee supporting and configuring computer hardware and software, server network, cloud data, computers, printers, photocopy machines, scanners and manages network systems, support training, zoom calls and webinars;

    ·28/7/21 letter from Phu Pham , assistant accountant for the applicant, confirming that the nominee has worked at the applicant as an IT support officer since 1/7/15;

    ·Employment agreement for the role of IT support and network security on $38.44 per hour 38 hours per week signed and dated 1/4/20 on a salary of $38.44 per hour for 38 hours per week plus reasonable additional hours ;

    ·Trust tax return FYE 30/6/20 prepared by PENNY KHA & ASSOCIATES PTY LTD as agent for The Trustee for Q&K Family Trust (ABN 40167984047) showing income as $968,310 and $475,422 spent on wages;

    ·Australian Business Register (ABN 40 167 984 047)-The Trustee for Q&K Family Trust and naming the trustee as Palace of the Orient Pty Ltd (30/4/2003)

    ·schedule to the deed of amendment Q & K FAMILY Trust deed ,18/6/04, naming the trustee as Penny Kha &Assoc. Pty Ltd together with a copy of the trust deed naming Palace of the Orient Pty Ltd (CAN 12 057 931 414) as trustee of the Q&K FAMILY TRUST dated 1/4/03;

    ·bundle of emails identifying an admin. email address for Penny Kha but they do not refer to the nominee and purchase requests for printer cartridges ;

    ·chart for access for on-line services noting the authorised user as the nominee from 23/6/20 to 28/6/21 stating on-line services for agents without any further identification as to the nature of the services or for whom or how this is linked to the applicant;

    ·18/5/17 applicant email to Viet Times seeking to advertise for an IT technician;

    ·Pre-filling report for ATO of nominee 2016-17 -gross income $20,183, 2018 gross income $20,861, 2019 gross income $29,290, 2020 gross income $43,107, 2021 gross income $53,740. The documents states that “You should not rely exclusively on this report but use it to assist you in preparing your client’s income tax return”. All of these documents were marked as created on 6/7/21 save for the pre-filling report for 2021 which was marked as created on 22/7/21;

    ·bundle self generated pay slip for nominee for 1/7/19-31/7/19 on a rate of $36.68 per hour, 1/8/19-31/8/19, and in 2020 rate increases to $37.32;

    ·Australian Super statements for the nominee from 1/7/16 to June 2020.

15. PAYG for the nominee were not provided nor were tax returns filed with the ATO.

16. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

    Position must be genuine

18. 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.

19. The Tribunal had requested evidence of the payments made to the nominee as Ms Kha had stated that the nominee had been working for the applicant on a part time basis since 2015. However, the Tribunal did not receive the PAYG requested nor the nominee’s tax returns. The payslips provided are self generated and arguable self serving as they cannot be assessed against any reliable measure. The Tribunal also received pre-filling reports prepared for the Australian Taxation Office (ATO) for the period 2016 to 2020 in relation to the nominee. However, these documents were not created until the day of the hearing and  late July 2021. These documents are marked indicating that they are prepared to assist in the preparation of the documents to be submitted to the ATO and therefore can only be considered to be draft documents and therefore are not reliable as indicative of the true circumstances of the income received. The superannuation statement does show that contributions have been made by the company to the fund since 2016.

20. The Tribunal had also requested material evidencing the work that was performed by the nominee. The Tribunal received a number or purchase orders for cartridges, a chart of unidentified services for unidentified accounts allegedly undertaken by the nominee. The Tribunal did not receive any demonstrable evidence of the nature of the services being provided by the nominee to determine if the services provided aligned with the tasks expected of a Computer Network and Systems Engineer. In particular there was an absence of evidence supporting the claim that the nominee performed the role of ensuring that systems run smoothly in relation to the lodging of tax returns, performing system updates and security so as to comply with the ATO’s requirements. Further, there is a lack of material supporting the claim that during the COVID-19 period the support provided by the nominee has increased or that the nominee performs or will perform  tasks such as configuring computer hardware and software and involving the server network, cloud data, computers and  managing network systems, support training, zoom calls and webinars. The bundle of requests for printer cartridges does not show that the nominee is performing tasks in relation to printers, photocopy machines and scanners as would be expected of a Computer Network and Systems Engineer.

21. The ANZSCO code states that the tasks that a Computer Network and Systems Engineer would be expected to perform include:

    Plan, develop, deploy, test and optimise network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault-finding services for network problems. (skill level 1)

22. The material submitted does not demonstrate that the nominee is performing these tasks and the chart submitted makes no mention of the types of services being undertaken. The applicant has therefore failed to establish that the nominee is performing the role as claimed or that the role is consistent with the ANZSCO description of the tasks to be performed.

23. In the application to the Department the applicant did not identify that the nominee is in fact the first cousin of Ms Kha, the sole director of the company. Ms Kha claimed that due to a back injury she was confused when completing the application form. The Tribunal finds that this is an improbable excuse given the detail that was otherwise provided in the application and the fact that she had to turn her mind to providing the required certification that the application was not to produce a migration outcome for the nominee. Further, Ms Kha was aware and gave evidence that her father had already sponsored the nominee under the student visa scheme. Given the lack of material establishing the actual role performed by the nominee is consistent with that as described in ANZSCO and the previously undisclosed relationship between the nominee and Ms Kha, the Tribunal finds that the application has been made to secure a migration outcome for a family member being Mr Ly. The Tribunal is therefore not satisfied that the position associated with the nominated occupation is genuine.

24. For these reasons the requirements of reg 2.72(10)(f) are not met.

25. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

26. The Tribunal affirms the decision not to approve the nomination.

    Danielle Galvin
    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.