Sharma's Kitchen Pty Ltd (Migration)

[2021] AATA 4033

Sharma's Kitchen Pty Ltd (Migration) [2021] AATA 4033 (15 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sharma's Kitchen Pty Ltd

CASE NUMBER:  1826693

HOME AFFAIRS REFERENCE(S):          BCC2017/2339361

MEMBER:Namoi Dougall

DATE:15 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 October 2021 at 10:01am

CATCHWORDS
MIGRATION – application for approval of nomination of position – specified occupation – inapplicability conditions – mass production in factory setting – scale of operations and expansion of product range – some specialised products for religious and cultural events cannot be machine-made – sales and export potential – genuine position – comparison of position description and ANZSCO listing – nominee’s role in training other workers – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(1)(b), (2), 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(aa), (f), 2.73

CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 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 applied for approval on 30 June 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 delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg.2.72(10)(aa) because the delegate was not satisfied that the applicant met caveat 7 relation to the inapplicability conditions. The delegate referred to information provided by the applicant that indicated that the business produced chilled/frozen and pre-package products for sale in a retail environment and found that the position is involved in a mass production in a factory setting.

4. Mr Bipen Sharma, a director of the applicant authorised Ms Tanisha Sharma, HACCP Coordinator/Manager of the applicant to appear on behalf of the applicant before the Tribunal on 21 September 2021 to give evidence and present arguments.

   BACKGOUND

5. At the hearing Ms Sharma stated she is the manager of the business which involves the day to running of the factory, making sure orders go out on time, quality assurance and a little bit of everything.

6. At the hearing Ms Sharma stated that the business has been operating over 20 years having been started by her father, Mr Bipen Sharma. The business primarily produces Indian dairy products which supply restaurants and retail stores. The business was making sweets in 2018 but had to stop because they could not make to the quality they wanted. The business’ products are made locally using local sourced ingredients. The business has a dairy manufacturing factory in Hornsby which is approximately 1000 m2 and currently employs over 20 people in the factory area and there are also office staff.

7. At the hearing the Tribunal referred to the turnover being significant and asked what the business’s best sellers are. Ms Sharma stated that their Indian yoghurt and paneer are best sellers, followed by the drinks and then the ghee. The Indian yoghurt and paneer account for 75% of sales.

8. At the hearing the Tribunal referred to 1000m2 being a reasonable sized production space and indicates that there is production on a scale using machines. Ms Sharma state that the paneer and yoghurt were once done by hand but now the paneer is done by both hand and machine and the yoghurt is all machine produced. Ms Sharma confirmed that even the products which require some work to be done by hand are done at scale.

9. Mr Singleton supervises the machinery operation and would not be involved with the sweet production.

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

11. 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 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.

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 reg 2.73.

2. The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and the fee has been paid. The applicant has identified Mr Manjay Shahi in the nomination. The nomination includes the location of various locations in Hornsby, NSW, at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Chef (351311). For these reasons the requirements of reg 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 applicant was approved as a standard business sponsor on ** and that the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor.

3. For these reasons the requirements of reg 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. The applicant has identified in the nomination Mr Shahi as the nominee to work in the nominated occupation of Chef (351311). For these reasons the requirements of reg 2.72(5) are met.

Requirements for existing Subclass 457 visa holders

1. As the nominee is not the holder of a Subclass 457 visa, the requirements of reg 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 relevant instrument; 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. The applicant has provided the name of the occupation, Chef, and its corresponding ANZSCO code of 351311 and the location in Hornsby, Sydney, which is where the occupation will be carried out.

3. For these reasons the requirements of reg 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. Having perused the Department’s file, the Tribunal is satisfied that the applicant has provided the required certification as part of its nomination.

3. For these reasons the requirements of reg 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 regs 1.13A and 1.13B.

2. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to Immigration, either about the nominee or a person associated with the applicant.

3. For these reasons the requirements of reg 2.72(9) are met.

Specified occupation

1. Regulation 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: reg 2.72(10)(b).

2. In the circumstances of this case, the relevant instrument, IMMI 17/060, states the occupation of Chef (ANZSCO 351311) is not applicable for Subclass 457 visa purposes for persons who will work in positions where:

   7.       The position is involved in mass production in a factory setting.

   8.       The position is in a limited service restaurant.

3. The caveats are worded generically and not otherwise defined, so that consideration needs to be given to the context provided and the relevant facts and circumstances of the position when considering the application. It will not be the situation for example, that every position in a factory, whether is a small, medium or large factory involves mass production. Nor is it the situation that a small factory excludes mass production. A determination as to whether the nominated occupation is in applicable depends on the circumstances of each matter and the evidence provided to the Tribunal. In the circumstances of this review condition 8 set out above is not relevant as the position is not located in a restaurant.

4. At the hearing the Tribunal asked what the nominee’s duties will be and Ms Sharma stated that he will be making the sweets the business wants to produce specifically Indian sweets. He will teach and supervise; how to order ingredients and products; instruct on the recipes and how to produce items. He will be training the day to day staff and as it is quiet hands so there will be a few people he will have to teach. The Tribunal asked what his role will be once the staff have been trained and Ms Sharma stated that the nominee will innovate and add additional products so there is continuous improvement and additional and unique items added to the product list.  The business is constantly doing R&D as it is a market leader. The Tribunal asked what the business would be comfortable in in its product line and Ms Sharma stated that there are 50 to 100 Indian sweets. The Tribunal asked if the business would make 50 to 100 sweets and Ms Sharma said she would love to be able to produce that many sweets. Indian sweets are important product in Indian tradition as they mark religious holidays and special events and important part of hospitality in Indian culture.

5. At the hearing the Tribunal referred to the business’ website and that their products include box sweets and jar sweets. Ms Sharma stated that they currently import the sweets from Europe and would like to make them in Australia from Australian produce. They are limited and prohibited from importing dairy product in Australia. The business aims to sell sweets in boxes and open in stores so customers could pick and choose.

6. At the hearing Ms Sharma stated that when making the sweets, the use machinery is similar to when making a cake, but there are some specific handmade items which cannot be made with machinery. Many need to be made all by hand and this would need an increase in staff as more hands would be needed. The Tribunal asked what the business would need to make a profit from selling Indian sweets and Ms Sharma stated that she wanted something quiet niche and specialised, a unique product for special occasions. The aim is not to make a large profit but also not to make a loss. Ms Sharma confirmed that to make a product they would need a reasonable amount of production so the business could not make small runs. Ms Sharm also confirmed that the sweets will be made in their factory in Hornsby.

7. The Tribunal asked if there are plans to expand the factory and Ms Sharma said there are no current plans, but they are hoping to expand and the production of sweets would be part of the expansion plans.

8. At the hearing the Tribunal asked about OH&S procedures and Ms Sharma stated that the business follow all NSW food authority guidelines and have an external HCCP accreditation.

9. The Tribunal referred to the nominee providing supervision on recipes and technique and that there is some part of the process which will be done by hand but that to make a profit there would have to element of scale and that Ms Sharma said that there would be a need for more employees so there would be more hands.

10. At the hearing the applicant’s represented submitted that there is not a better ANZSCO classification for this role. In relation to the inapplicability conditions, the reference to a factory is a reference to the need for a lower level skill set which. The example provided was that of biscuits being made in the Arnott’s factory. The same biscuit is made over and over again as they are a large volume consumer product. The Indian sweets are a very different product as they would be highly specialised, unique crafted sweets which would be a work of art. The representative also submitted that for the Indian cultural group there is a gapping hole for these type of Indian sweets as they are not as available in Australia as they are in India. A high level of skill is required beyond switching on machine where the ingredients are measured automatically. This is very different as it is not a product like the paneer but a unique product for specialised religious events and to cater for Indian diaspora.

11. At the hearing, Ms Sharma stated that the point is not profit but to expand their range and to build brand and to benefit from that. Ms Sharma also stated that there is no indication what the volume will be. The business needed to maintain the quality of sweets and to do this they needed to employ someone who can make the product so it tastes as it should taste as the business is successful as it focuses on the quality.  Ms Sharma also stated that the sweet making will require separate machinery and different lines so it will be a mini business within the main business.

12. After the hearing the Tribunal was provided with additional information and a submission. Mr Bipen Sharma, director of the applicant stated in a letter to the Tribunal that state that there is demand for Indian sweets in Australia and the nominee would allow the applicant to meet the demand. Currently, they import from a related company in Bulgaria 5 varieties of sweets but cannot import more due to the restrictions on the import of dairy product. The letter also referred to nearly half the milk production in India going towards the making of dairy based sweets.

13. Mr Sharma’s letter also stated that using Australian dairy with its premium quality will allow the applicant to offer superior quality sweets to the Australian Indian community. The applicant believes that there will be strong sales and export potential.

14. Inapplicability caveat 7 requires two elements to be considered: is there mass production and is that mass production in a factory setting. The evidence before the Tribunal is that the applicant’s Hornsby location is a factory. This was confirmed by Ms Sharma’s evidence at hearing including her statement that the applicant has a dairy manufacturing factory in Hornsby and the depreciation schedules provided after the hearing. In the submission of the applicant’s representative (the submission) it was submitted that the machinery in the depreciation schedule are related to the applicant’s manufacturing of other dairy products, but Ms Sharma stated at hearing that the manufacturing of the sweets will require its own machinery. The applicant has not started to manufacture sweets so it is not to be expected that they would have obtained the necessary machinery. On the evidence the Tribunal is satisfied that the position associated with the nominated occupation will be in a factory setting.

15. The Tribunal will now consider if the position is one that involves mass production. It was submitted that Indian sweets are not able to be authentically made by machine and need to be made by hand to create authentic flavours and textures. It was further, submitted that artisanal approach will be used keeping the food processes raw and ensuring the product provide complex taste and variety every time. The submission does not refer to Ms Sharma stating that machinery will be used but sperate machinery form what is already in use in the applicant’s factory. Although Ms Sharma did state that some aspects of the production had to be done by hand and the Tribunal is satisfied that the process of making the sweets will be by hand and by machine.

16. The Tribunal questioned Ms Sharma about the applicant’s proposed range and scale of production to ascertain whether there would be mass production of the sweets. Unfortunately, not much detail was provided but the Tribunal did establish that production would have to be sufficient as the applicant’s aim was to not a large profit but not to make a loss.

17. Even though, the evidence as to the artisanal nature of the sweets to be produced was more by submission the Tribunal accepts that the applicant intends to produce Indian sweets which are more for special and religious occasions and which are not primarily for daily consumption. The Tribunal accepts that there will be a strong element of production by hand which will require the skills of the nominee not just in production but in training. Although having an element of production being done by hand does not of itself exclude mass production, in the current circumstances the Tribunal is satisfied that the production of the Indian sweets by the applicant will be a niche product and limited in scale of production in comparison with the applicant’s primary products of yoghurt, paneer and ghee, therefore, the Tribunal is satisfied that the position is not involved in mass production in a factory setting.

18. For the above reasons, the Tribunal finds that position associated with the nominated occupation is applicable for a Subclass 457 visa applicant. For these reasons the requirements of r.2.72(10)(aa) are not met.

19. The relevant instrument does not require the nominated occupation of Painting Trades Worker to be supported in writing to the Minister, by a specified organisation before the nomination. For these reasons the requirements of reg 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 (Cth).

1. 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: reg 2.57(3A). ‘Earnings’ is defined in reg 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.

2. 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: reg 2.72(10AA).

3. 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: reg 2.72(10AB). The nominee’s proposed earnings of $54,000 are less than those specified in the relevant instrument.

4. The evidence before the Tribunal indicates that there are no Australian citizen employees in the applicant’s business performing equivalent work at the same location.

1. The Tribunal has also had regard to the terms and conditions of the nominee’s employment as set out in an Employment Contract dated 17 June 2017 and signed by Mr Shahi and the nominee, which indicates that the annual base salary of the nominee will be $54,000. The contract also sets out the details of the nominee’s superannuation and leave entitlements. The financial statements for the periods ending 30 June 2019, 2020 and 2021, indicate that the applicant made profits of $1,010,026, $1,428,779 and $1,723,216 respectively.

2. Provided to the Tribunal were a salary guide and copies of job advertisements for Chefs on *** Seek and Indeed. The Payscale.com salary guide indicated that range for the average salary for a Chef is $42,000 to $61,000 with medium average being $52,720.

3. Accordingly, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to an Australian employee performing equivalent work at the same location.

4. Accordingly, the Tribunal finds that the requirements of reg 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.

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: reg 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: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.

3. Likewise, the requirement in reg 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: reg 2.72(10AB).

4. Based on the above and on the information and findings made in relation to reg 2.72(10)(c), the Tribunal is satisfied that the nominee’s proposed salary will be $54,000 plus superannuation guarantee, and that this is greater than the TSMIT of $53,900. The Tribunal, therefore, finds that reg 2.72(10)(cc) is met.

Certification under reg 2.72(10)(e)

1. As part of the nomination, the applicant must certify various matters in writing: reg 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;

   ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity; 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 reg 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 Tribunal was provided with a position description which set out the position’s duties and responsibilities as follows:

   ·     Plan and organise the preparation and cooking of food product

   ·     Plan procedures necessary for preparing food product within regulations

   ·     Plan a monthly estimate of materials/ costs required to produce food based on market analysis

   ·     Monitoring quality of the end food product to ensure up to company standards

   ·     Develop new recipes for innovative new food products

   ·     Discussing any food preparation or produce quality issues with Managers and Quality Assurance Officer

   ·     Providing training to any staff that is required

   ·     Enforcing hygiene regulations as set out by NSW Food Authority

   ·     Fulfilling all orders within a timely manner

   ·     Freeze and preserve food according to required safety standards

3. The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the position of Chef (351311) and the listed tasks which are as follows:

   ·planning menus, estimating food and labour costs, and ordering food supplies

   ·monitoring quality of dishes at all stages of preparation and presentation

   ·discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

   ·demonstrating techniques and advising on cooking procedures

   ·preparing and cooking food

   ·explaining and enforcing hygiene regulations

   ·may select and train staff

   ·may freeze and preserve foods

   ·Plans and organises the preparation and cooking of food in a dining or catering establishment.

4. .The Tribunal has also taken into consideration Ms Sharma’s oral evidence a the hearing and the more detailed position description provided after the hearing. Although the nominee’s duties and responsibilities are not a perfect match for those set out in ANZSCO for the position of Chef for example the nominee will not be working in a dining or catering establishment, the Tribunal is satisfied on the evidence that the nominee will perform a majority of duties relevant and equivalent to those listed in ANZSCO.

5. On the totality of the evidence, and on the Tribunal’s findings made above, the Tribunal is satisfied that the position associated with the nominated occupation is genuine. 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 relevant instrument.

2. The applicant has provided a signed contract of employment dated 20 July 2021. For these reasons the requirements of reg 2.72(10)(h) are met.

Work agreements

1. As the applicant is not a party to a work agreement, the requirements of reg 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 ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

2. In this case, the nominated occupation is Chef ANZSCO 351311. This occupation is classified as Skill Level 2 in ANZSCO. All occupations which are classified in ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b) of the Act: IMMI 13/137. In the circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) of the Act are met and the nominee is exempt from having to satisfy the labour market testing requirements in s.140GBA of the Act.

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

4. 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.

Namoi Dougall
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.