SANNITA PTY LTD (Migration)

[2019] AATA 475

SANNITA PTY LTD (Migration) [2019] AATA 475 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SANNITA PTY LTD

CASE NUMBER:  1621278

HOME AFFAIRS REFERENCE(S):           BCC2016/2896113

MEMBER:Karen Synon

DATE:20 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 20 February 2019 at 9:11am

CATCHWORDS

MIGRATION – Employer Nomination – identification of the nominee – nominee’s visa cancelled while overseas – genuine position – Café Manager – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES

MZAFZ v MIBP [2016] FCA 1081

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 Immigration and Border Protection on 8 December 2016 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 8 December 2016. 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 2.72(10)(f) because he was not satisfied that the position was genuine.

4. With the application for review lodged on 13 December 2016, the applicant provided a copy of the primary decision and a number of supporting documents.

5. On 16 February 2018 the Tribunal wrote to the applicant in accordance with s.359(2) inviting updated and current information in relation Regulation 2.27 noting that these are time of decision criteria.  This written information was invited by 2 March 2018.

6. A response was received on 23 February 2018 with comprised a detailed submission and 20 supporting documents including a statutory declaration from the director of the business, Michael Pelosi and also financial documentation.  Relevantly to concerns raised during this review in covering correspondence, the representative states:

   In view of the fact that the 457 visa subclass is likely to be formally abolished in the coming week or two, I request that the member make a decision in this matter “on the papers” immediately. This will enable the visa applicant to lodge a new 457 application before the proposed legislative changes come into effect.

   I note that this application for review was lodged more than a year ago, and the issues are relatively straightforward.

7. On 3 April 2018 the representative again wrote to the Tribunal in the following terms:

   I am just following up my email of 23 February 2018 below, in order to request that the Tribunal make a decision to approve the nomination “on the papers”.  I note that the nominee, Ms Carmen Pipitone, lodged an application for a subclass 457 visa on 28 February 2018 (see attached invoice).  Given that the application was lodged offshore, a refusal of this decision would not be a Part 5-reviewable decision. There is therefore of some potential urgency in the matter before the Tribunal, in that any decision to approve the nomination made after a possible visa refusal will lack any practical benefit.  I look forward to hearing from you at your earliest convenience.

8. On 24 April 2018 the representative again wrote to the Tribunal in the following terms:

   I am just following up my three emails below and my phone call to the Tribunal from last week.  I again note that:

   a)The Department may make a decision on Ms Pipitone’s visa application before the Tribunal makes a decision on the nomination, and may not be prepared to wait for the Tribunal (the Tribunal’s power to adjourn a review under s 360(1)(b), which must be exercised reasonably, has no application to a visa application under consideration by a delegate of the Minister);

   b)It is therefore a matter of urgency that the Tribunal approves the nomination before[1] the expiry of the 28 days specified in the s 57 letter (i.e. before next Tuesday, 1 May 2018); and

   c)If the Tribunal approves the nomination after the visa application has been refused, the visa applicant will have no right of merits review and the approval of the nomination will therefore be of no value to any of the parties affected by the decision.

   I note that the application for review of the nomination was lodged in 2016.I look forward to hearing from you.

   [1] All emphasis is the representatives.

9. On 3 May 2018 the representative again wrote to the Tribunal in the following terms:

   Can you please advise if the Tribunal is able to make a decision to approve the nomination on the papers or what, if any, further documentation would be required to assist it to do so.

   I note that the deadline for the visa applicant to respond to the s 57 has passed, and I have requested that it defer making a decision on the visa application until the Tribunal has made a decision on the nomination.  I have not heard back from the Department, so it is possible that a decision to refuse the visa application could be made at any time.

10. The matter was first constituted to another member but as that member was not able to determine this matter it was re-constituted to the presently constituted Tribunal.

11. On 15 August 2018 the applicant was invited to a hearing on 25 September 2018 to give evidence and present arguments in relation to this case.

12. On 23 August 2018 the Tribunal was advised by the representative that the applicant wished to withdraw from this matter.

13. On 23 August, 3 September, 11 September and 17 September 2018 the Tribunal contacted both the applicant directly and the registered migration agent to clarify the applicant’s intention to withdraw and, if so, to request that a withdrawal form be completed.  Relevantly on 11 September 2018 Mr Michael Pelosi confirmed that the review applicant wished to withdraw the application.  However on 17 September 2018 the Tribunal was advised that the review applicant had decided to procced with the application that, in particular, Mr Pelosi’s mother wants to attend a hearing to “get some closure”.

14. Mr Michael Pelosi appeared on behalf of the review applicant, Sannita Pty Ltd on 11 October 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from his sister, Laura Pelosi and mother, Anna Pelosi.

15. During the hearing the applicant agreed to provide to the Tribunal, after the hearing, a document detailing the various nominations and application dates.  At the time of decision this has not been provided and so the Tribunal has proceeded on the basis of the information before it.

16. The applicant was represented in relation to the review by its registered migration agent.  He did not attend the hearing

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. During the hearing Mrs Anna Pelosi expressed her serious concerns about the delays in the process both at the department and Tribunal stage saying they had been advised that it would likely be 12 months between lodging the review and constitution.  She said they could not run a business this way.  As a result they feel very let down; it has taken a toll on her health and she feels she has come to a brick wall and has lost faith in the way the system has now turned on her.  The business is owned by Michael Pelosi and she runs a different business.  By way of context, Laura Peolosi explained that Carmen Pipitone was employed at the Binario Café in Nunawading which she was owned.  She closed this café in July 2016 because the building, which was owned by her parents, had been sold.  Carmen Pipitone only worked at Binario Café for about 6 months.  At the time Michael Pelosi was opening The Faculty in Hawthorn because Binario’s was closing.  They were advised by their previous migration agent that a transfer of Carmen Pipitone’s 457 to her brother’s business, The Faculty, would not be a problem, that she could travel overseas to see her sick mother, and that she did not require any other visa to travel.  But while overseas her visa was cancelled.  She went overseas in March 2017.  During the period July 2016 when Binario’s closed and she went overseas she was living at the family motel but not working.  She received a ‘Notice of Intention to Cancel’ her visa while she was overseas but she did not receive it; it was sent to the email address she used when she first came to Australia on the working holiday visa but her email address had since changed.  The Tribunal noted that if Carmen Pipitone was not working between the period July 2016 and March 2017 she most likely breached a condition of her 457 visa which was, at the time, that she not cease work for her sponsor in her nominated occupation, for a period in excess of 90 days.  When Carmen Pipitone attempted to board a plane to return to Australia she was stopped.  They tried to get her back here on a visitor’s visa but this was refused.  They applied for another 457 but this was also refused earlier in the year.  She could not appeal the visa cancellation or the second 457 application because she was offshore.  Laura Pelosi said they knew the applicant through a cousin in Italy and she has become like family.  Mrs Anna Pelosi said she took her under her wing and they all agreed that she was an extraordinary worker and ran the business like it was her own.  She had surpassed all their expectations and Michael Pelosi said they would fight for her now.  Anna Pelosi said that they had given her opportunities to make herself better which she did not have in Italy.  She feels she has to help her, if she possibly can.  Anna, Laura and Michael Pelosi said they came to the hearing to say they were applying for a 482 visa and they hoped the Tribunal could address the issue of genuineness with this case which in turn might assist them in a new application.  They have applied for a new standard business sponsorship and after this is approved they will lodge a new 482 nomination and 482 visa application.  Their representative has told them it might not be successful due to the cancellation and also because it is a café.  Anna Pelosi highlighted her son Michael’s health problems which made it difficult for him to work in his café 7 days a week.

    Identification of the nominee

20. 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.

21. Regulation 2.72(5) requires that the decision maker must be satisfied that the approved sponsor has identified in the nomination the visa holder, or visa applicant, or proposed visa applicant who will work in the nominated occupation.  This criterion is intended to reflect the policy intention that the standard business sponsor must identify the person who will work in the nominated occupation.[2] This means that while the nomination is of an occupation, pursuant to s.140GB(1)(b) of the Act, the nomination relates to a particular individual. If the approved sponsor has not identified such a person as part of the nomination,[3] or a decision maker is not satisfied that the identified person will work in the nominated occupation, this criterion will not be met.

    [2] Explanatory Statement to SLI 2009 No. 203, pp.33-34.

    [3] This is in practice unlikely given the use of an internet form to seek approval of a nomination, which requires this information to be provided.

22. The Tribunal is of the view that the terms of r.2.72(5) restrict the identification of the nominee who will, by the time of decision, work in the nominated occupation, to the nominee who was named when the application for approval of the nomination was lodged. The use of the words ‘identified in the nomination’, read with some of the requirements of r.2.73,[4] suggests r.2.72(5) requires the decision maker to be satisfied that the person identified when the nomination application was initially lodged will work in the nominated occupation. This is the view reflected in Departmental policy,[5] which, while the Tribunal is not bound to follow, in this case, sees no reason to depart from.

    [4] For example, the requirement in r.2.73(2) that ‘the nomination’ must be made using the internet, suggests that the words ‘the nomination’ are intended to be restricted to the application for approval of the nomination. Further, there is also a requirement to identify the nominee in r.2.73(4A)(a) which refers to ‘the information mentioned in subregulations r.2.72(5)’, suggesting that the information (i.e. identify of visa holder, applicant or prosed applicant) must be the same at the time the application for approval is lodged and at the time a decision is made on the criteria in r.2.72.

    [5] It is Department policy that if there is a need to change the nominated person, the applicant must withdraw the original nomination application and lodge a new one: PAM3 – Migration Regulations – Schedules – Temporary Work (Skilled) visa (subclass 457) – nominations – [4.5.3] Nominee must be identified (reissued 1 October 2017).

23. Even if the Tribunal were to accept that a sponsor may nominate a different person to that identified in the nomination application, given that the 457 program closed on 18 March 2018, there is no procedure for any new or alternative nominee to be identified.

24. During the hearing the Tribunal explained to the Michael, Laura and Anna Pelosi the three stage 457 process noting that for a 457 application to be approved, a nomination for a specified occupation must be approved and that, since they lodged this application for review, the 457 visa program has been closed.  This means that if there is not already a live 457 application; that is one that has not already been determined by the department or is still on review with the Tribunal, no new 457 visa application can be lodged.  It was without contention at the hearing that Carmen Pipitone does not have a 457 undetermined with the department or at the Tribunal.  The Tribunal was told that the applicant’s 457 visa was cancelled when she was overseas in Italy.  This was cancelled after she ceased working at Laura Pelois’ café in July 2016.  A new 457 visa was lodged on behalf of Carmen Pipitone but this was refused by the department in 2018.  Carmine Pipitone has not been able to return to Australia.

25. Therefore, in this case there is no related 457 visa application undetermined at the department or on review in respect of Carmen Pipitone.  Regulation 2.72(5) requires that, at the time of decision, the Tribunal it is satisfied that the review applicant has identified in the nomination the visa holder, or visa applicant, or proposed visa applicant who will work in the nominated occupation.  The nomination relates to a particular individual and, because the 457 program was closed on 18 March 2018, no new 457 visa applications can be lodged, which means that the person it nominated, Carmine Pipitone, will not be able to work in the nominated occupation.

26. As discussed with Mr Michael Pelosi at the hearing Sannita Pty Ltd cannot satisfy regulation 2.72(5) because Carmen Pipitone is not able to work in the nominated occupation.

27. The Tribunal is therefore not satisfied, at the time of this decision, that the approved sponsor has identified in the nomination a visa holder, applicant or proposed applicant who will work in the nominated occupation.

28. For these reasons the requirements of r.2.72(5) are not met.

    The Tribunal’s view on the Genuineness of the Position

29. As the Tribunal has found that the requirements of r.2.75(5) are not met is not necessary for it to further consider other criteria within Regulation 2.72 however the review applicant has asked the Tribunal to include some observations of the genuineness of the position which is the criteria against which the nomination was refused.  This request was made mindful that a further 482 nomination is likely to be made in respect of Carmine Pipitone and for this reason the Tribunal agreed to do so.  The Tribunal cautioned that its observations would not necessarily hold any weight with the department delegate.

30. After having the benefit of speaking with Mr Michael Pelosi the owner of the business which trades as The Faculty Café in Hawthorn and his mother and sister who support him in this business venture, and having considered the submission and documentation provided to the Tribunal in support of this application, the Tribunal is of the view that the position associated with the nominated occupation is genuine.  The Tribunal found Mr Pelosi to be credible, sincere and genuine in his evidence.  Mr Pelosi is currently managing a busy café which operates seven days a week in the inner Melbourne suburb of Hawthorn.  The Tribunal notes that since the cafe’s commencement in October 2016 it has had significant growth as demonstrated in its Business Activity Statements through to the period ending September 2017 when it recorded a turnover of $118,470 for the quarter from a nil position in June 2016.  In addition to its continued growth, the business is undertaking the process to gain a licence to serve alcoholic beverages and increase its opening hours.  While Michael Pelosi has been acting in the position as the Café Manager on a part-time basis he requires a full-time manager with appropriate qualifications to allow him to step away from his hands-on role in order to allow him the time to expand and manage the business.  Michael Pelosi also works full-time in another family business which runs the Nunawading Motor In and has ongoing managerial responsibilities at this family business.  The Tribunal accepts the evidence before it that Michael Pelosi is currently working approximately 80 hours a week and accepts that this is unsustainable especially given his plans to extend the range and hours of his café business.  While the business may have been newly established at the time the delegate refused the nomination, a period of over 2½ years has now elapsed during which time Mr Michael Pelosi has been able to demonstrate continued growth and stability.

31. Therefore, in the absence of the applicant not meeting the requirements of r.2.72(5), the Tribunal records that would have been satisfied that the position associated with the nominated occupation is genuine.

32. The Tribunal also notes the evidence provided to it about the circumstances in which Carmen Pipitone’s 457 visa was cancelled, and the fact that both Michael Pelosi, who was planning to employ Carmen Pipitone as a restaurant manager at his café, and Laura Pelosi, who had employed the applicant at her cafe in Nunawading until its closure, relied on the advice of their former migration agent that Carmen Pipitone’s 457 visa could be transferred to the new, but related, legal entity and that she could travel overseas unrestricted.  Michael, Laura and Anna Pelosi all gave consistent evidence that they had all times consulted with their former migration agent and relied on his professional advice that Carmen Pipitone would have no issues in transferring her 457 visa.  They believe they were given the wrong migration advice and that they in turn did not correctly advise their sponsored 457 holder.  In this respect it appears that Carmen Pipitone’s 457 cancellation came about due to a breakdown in communication and not through a deliberate flouting of condition 8107.

    375A Certificate

1. The department file contains a Certificate issued under s.375A which purports to cover department folios numbers 94-100.  The Certificate dated 22 May 2017 states that disclosure, other than to the AAT, would be contrary to the public interest because: “…the ICSE notes/referral details) record information relating to the department’s information gathering and verification processes”.  The Federal Court decision of MZAFZ v MIBP[2016] FCA 1081, Beach J, VID 461 of 2016, considered a s.438 certificate with similar wording.  In light of this decision, the Tribunal finds that the certificate is not valid, as it does not specify a reason that could form the basis for a claim to public interest immunity.  In any case, notwithstanding the Tribunal’s view that the certificate is not valid, the material at folios 94-100 was not relevant to this decision and therefore has not been taken into account.  The Tribunal explained this to the review applicant and the witnesses at the hearing.  He did not have any questions or comments.

   Conclusion

2. For the reasons given above in paragraphs 20-28, 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

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

   Karen Synon
   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.