RANDHAWA, JASPAL (Migration)

[2019] AATA 2608

RANDHAWA, JASPAL (Migration) [2019] AATA 2608 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  RANDHAWA, JASPAL

CASE NUMBER:  1810759

HOME AFFAIRS REFERENCE(S):           BCC2017/1787470

MEMBER:George Hallwood

DATE:30 April 2019

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 30 April 2019 at 11:45am

CATCHWORDS
MIGRATION – nomination of occupation – genuine position – detailed submissions and documents – “Café or Restaurant Manager” ANZCO 141111 – evidence satisfies the position was not created for purpose of facilitating the nominees staying in Australia – skilled occupation  genuinely needed by nominating employer  – written contract of employment – labour market testing requirements not applicable – decision under review set aside

LEGISLATION
Fair Work Act 2009
Migration Act 1958 (Cth), ss 140, 275
Migration Regulations 1994, Schedule 2, 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 28 March 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 applied for approval on 19 May 2017. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation is genuine. In particular, the delegate was not satisfied that it was possible to establish:

   ·how the business was run (including how food is served to customers, how customers order their food, whether the business has a full commercial kitchen);

   ·in the absence of an organisation chart; the composition of staff at the restaurant, whether there is a waiter to serve customers, how duties are shared between the nominated position and other existing positions, whether there is a chef);

   ·In the absence of proper financial statements; the scale of the business to justify the position and the financial ability of the business to pay the wages of the position; and

   ·In the absence of an explanatory statement; that the position has not been created for the purpose of facilitating the stay in Australia of the nominee.

4. The applicant provided detailed submissions and supporting documents which the Tribunal has relevantly referred to below. The applicant, Mr Jaspal Randhawa appeared before the Tribunal on 15 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Kawalpreet Kaur who’s subclass 457 visa refusal was linked to this hearing and with the agreement of parties was heard at the same time. Mr Randhawa’s partner, Ms Sukhraj Kaur also appeared as a witness. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by its registered migration agent.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. By way of background, Mr Jaspal Randhawa trading as Whyalla Currie House (the business) is an Indian cuisine restaurant and take away operating in Whyalla, a regional city of some 21,000 people on South Australia’s Eyre Peninsula, since November 2016.

The nomination must comply with the prescribed process

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

2. The Tribunal has had regard to the material on Department’s file and is satisfied that the application was compliant with the process set out in r2.73:

   ·The business nominated an occupation, “Café or Restaurant Manager” ANZCO 141111 under s.140GB(1)(b): r.2.73(1A)(a);

   ·The business identified in the nomination Ms Kawalpreet Kaur, whose associated Subclass 457 visa application was lodged on the same day, as the person who will work in the occupation: r.2.73(1A)(b);

   ·The business made the application in the prescribed way, used the approved form and paid the correct fee –r.2.73(2), (3), (5) & (9);

   ·The business identified the nominee Ms Kaur in the nomination: r.2.73(4A) and r.2.72(5);

   ·The applicant has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and

   ·The nomination included the location, Whyalla Norrie, at which the occupation will be carried out. Also included was the name “Café or Restaurant Manager” and 6 digit ANZSCO code 141111as the applicant is a standard business sponsor; as well as the relevant certifications mentioned in r.2.72(10).

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

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

1. 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.

2. Departmental records indicate that the business is a standard business sponsor approved on 26 March 2018 and that approval is still in effect. For these reasons the requirements of r.2.72(4) are met.

Identification of the nominee

1. 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.

2. Ms Kawalpreet Kaur is the proposed applicant for the visa identified in the nomination, as the person who will work as a Café or Restaurant Manager. For these reasons the requirements of r.2.72(5) are met.

Requirements for existing Subclass 457 visa holders

1. 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.

2. 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

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

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

   ·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 17/060; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

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

2. As part of the nomination, the applicant provided the name of the occupation (Café or Restaurant Manager), the corresponding ANZCO code (141111) and the location at which the nominated occupation is to be carried out (Whyalla Norrie). Accordingly, the Tribunal is satisfied that the required information has been provided in the nomination. For this reason the requirements of r.2.72(8A) are met.

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

1. 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.

2. The Tribunal is satisfied that the required certification has been provided in the nomination. For this reason the requirements of r.2.72(8B) are met.

No adverse information known to Immigration

1. 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.

2. There is no evidence before the Tribunal to indicate that adverse information is known to Immigration about the applicant or an associated person. For these reasons the requirements of r.2.72(9) are met.

Specified occupation

1. 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).

2. The nominated occupation of “Café or Restaurant Manager” and its 6 digit code (141111) correspond to an occupation and 6-digit code specified in the relevant instrument. The inapplicability condition at item 8 in s.8 of IMMI 17/060 provides that if the position is involved in a limited service restaurant this occupation is inapplicable. Section 4 of the relevant instrument defines “limited service restaurant” as including:

   a.a fast food or takeaway food service;

   b.a fast casual restaurant;

   c.a drinking establishment that offers only a limited food service;

   d.a limited service café, including a coffee shop or mall café;

   e.a limited service pizza restaurant.

3. Whyalla Currie House is a full service and take away restaurant that makes food from fresh ingredients using a full scale commercial kitchen and tandoor oven. The restaurant has a BYO licence. Mr Randhawa indicated the restaurant has seating for up to 50 people who are served at the tables or order at the counter depending on their own preference. Restaurant customers often pay at the end of their meal.

4. The Tribunal finds that in this case the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument and the occupation is applicable to the person identified in the nomination in accordance with the instrument. The Tribunal also finds that the inapplicability condition does not apply as the Whyalla Curry House is not a limited service restaurant as defined in the relevant instrument. For these reasons the requirements of r.2.72(10)(aa) are met.

5. There is no requirement for the nomination to be supported by a specified organisation. For this reason the requirements of r.2.72(10)(b) are not applicable.

Terms and conditions of employment

1. 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.

2. 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.

3. 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).

4. 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).

5. Evidence provided to the Tribunal indicates that the nominated position is currently filled by the nominee and that there are no Australians performing equivalent work at the same location. Based on the evidence provided the Tribunal is satisfied that:

   · The Restaurant Industry Award 2010 does not cover the occupation of Café or Restaurant Manager. Terms and conditions specified in the employment contract and confirmed in oral evidence that the terms and conditions have been determined by reference to job advertisements and industry expectations for similar roles and employee experience and adhere to all relevant legislation including the Fair Work Act 2009 and National Employment Standards;

   ·    The nominee’s contract contains hours of work, leave entitlements and salary together with other conditions. The nominees base salary for the position is $55,008 per annum plus 9.5% superannuation;

6. The Tribunal has had regard to the nominee’s earnings and conditions in comparison to relevant job market information and finds they are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location.

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

Base rate of pay

1. 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 was relevantly $53,900.

2. 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.

3. 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) which was relevantly $250,000.

For the nominee:

·    the nominee’s annual earnings are $55,008; and

· the annual earnings are less than the income threshold specified in the instrument for r.2.72(10AB).

For the Australian equivalent

·    the annual earnings and base rate of pay under the terms and conditions of the equivalent Australian citizen or permanent resident is $55,000;

·    the base rate of pay for the Australian equivalent is greater than the TSMIT amount specified in the instrument of $53,900.

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

Certification under r.2.72(10)(e)

1. 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;

   ·the nominated occupation is with a business, or an associated entity, of the applicant; and

   ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.

2. The Tribunal is satisfied that the relevant certifications have been made in the nomination form. For these reasons the requirements of r.2.72(10)(e) are met.

Position must be genuine

1. 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.

2. The business offers seven days a week BYO licenced dine-in restaurant, function and delivery services to the public.

3. Mr Jaspal Randhawa, the business owner, provided evidence that he does not speak English well and prefers to do his job as chef rather than managing the business.  He stated that he does not have a strong background in restaurant management.  He stated that he is totally reliant on the nominated position to manage, hire and train staff, work with customers, do the ordering, manage the money, run marketing campaigns, deal with legal requirements such as health authorities, manage their website, set and fill rosters, control quality, plan and coordinate menus in consultation with him, arrange functions, analyse sales and profitability, respond to complaints, organise tables, set pricing, and record keeping. He stated that he needs a manager and the nominee has been very good in fulfilling the role as Café or Restaurant Manager.

4. Having qualitatively assessed the position and comparing this with the occupation nominated the tribunal is satisfied that the person occupying the position is in fact required to undertake ‘tasks’ of the kind set forth in ANZSCO, and the ‘tasks’ required to be undertaken include a significant majority of the tasks set forth in ANZSCO.

5. The delegate was not satisfied that it is possible to establish:

   ·How the business was run (including how food is served to customers, how customers order their food, whether the business has a full commercial kitchen). Evidence was provided to the satisfaction of the Tribunal that the Whyalla Currie House is a full service restaurant with a full commercial kitchen. 

   ·In the absence of an organisation chart; the composition of staff at the restaurant, whether there is a waiter to serve customers, how duties are shared between the nominated position and other existing positions, whether there is a chef). Evidence, including an organisation chart, was provided to the satisfaction of the Tribunal that there is a satisfactory structure to the business warranting the need for the nominated position.

   ·In the absence of proper financial statements; the scale of the business to justify the position and the financial ability of the business to pay the wages of the position. Evidence was provided to the satisfaction of the Tribunal that, while the Restaurant Manager currently earns more from the business than the owner, the scale of the business does justify the position and the business has demonstrated an ability to pay the wages of the position. The business has also grown in terms of revenue and profit over the last financial year and the owner indicates it is improving this year as confidence in the Whyalla community improves. He has ambitions to expand the business further.

1. The delegate expressed concern that a position may have been created for the purpose of facilitating the stay in Australia for the nominee rather than for the intent of the subclass 457 program, that is to address labour shortages by bringing genuinely skilled workers where they cannot source an appropriately skilled Australian to fill the position.

2. Ms Sukhraj Kaur gave evidence that the business had advertised the nominated position in the Whyalla News during May 2017 and they received only two applications; one from the nominee, and another from an overseas applicant. As the business owner has very little English he was hoping to employ someone who was able to communicate well with him and his customers.

3. The nominee is able to communicate with the owner and in English, is qualified with a Diploma in Business, had previously worked part time for the business while on a student visa, and had experience working in other hospitality roles. The nominee is not related to the business owner or his wife but had met them initially as a customer in a hairdressing salon. The applicant provided a detailed explanatory statement. The provided evidence satisfied the Tribunal that the position was not created for the purpose of facilitating the nominees staying in Australia.

4. While the restaurant regularly receives unsolicited job applications, they have never received an application from anyone with the skills required for the nominated position.

5. Mr Randhawa indicated that he would not be able to grow the business without the nominated position and would struggle to run it at all with his limited English and limited restaurant management experience. He also believes his wife’s successful hairdressing business would suffer as she would be drawn into assisting with his restaurant.

6. The Tribunal is satisfied that the position associated with the nominated occupation is genuine, it is a skilled occupation and is genuinely needed by the nominating employer. For these reasons 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 instrument.

2. The applicant has provided the Tribunal with a copy of the signed contract of employment dated 16 May 2017 in respect of the nominee. For these reasons the requirements of r.2.72(10)(h) are met.

Work agreements

1. 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.

2. As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.

Labour Market Testing

1. 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.

2. The ANZSCO classification of a Café or Restaurant Manager requires an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or at least three years of relevant experience for the nominated position and the relevant qualification is not considered protected under legislation. It is exempt from labour market testing as set out in IMMI 13/137.

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

Concluding paragraphs

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

DECISION

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

George Hallwood
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.