Shiv Chahal Pty Ltd (Migration)

[2019] AATA 1012

Shiv Chahal Pty Ltd (Migration) [2019] AATA 1012 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Shiv Chahal Pty Ltd

CASE NUMBER:  1707731

HOME AFFAIRS REFERENCE(S):           BCC2016/4149139

MEMBER:Cathrine Burnett-Wake

DATE:22 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2019 at 1:47pm

CATCHWORDS
MIGRATION – nomination refusal– Cook – genuine need for the nominator to employ a paid employee – genuine position – base salary requirement met – terms and conditions of employment requirement met –decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR,
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73,
Fair Work Act 2009

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 Immigration and Border Protection on 23 March 2017 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 r.2.72(10)(f). They found that the nominee would not be regularly performing the full breadth of duties as a cook, as described in the ANZSCO, as such did not consider that the position associated with the nominated occupation was genuine.

4. Mr Shiv Kumar, the owner of Shiv Chahal Pty Ltd appeared before the Tribunal on 12 November 2018 to give evidence and present arguments.

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

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

7. 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.

   The nomination must comply with the prescribed process

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

9. Having reviewed the application form on the Department of Home Affairs’ (the Department) file, the Tribunal is satisfied that:

   ·the applicant nominated a relevant occupation under s.140GB(1)(b) being Cook (ANZSCO 351411): r.2.73(1A)(a);

   ·the application identified the nominee, Mr Ajay Singh, the proposed applicant for a Subclass 457 visa, as the person who would work in that occupation;

   ·the nomination was made using the approved form and fee: r.2.73(2), (3), (5) and (9);

   ·the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5);

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

   ·the nomination includes the locations at which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO code, as well as the relevant certifications mentioned in r.2.72(10): r.2.73(4)/(4A).

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

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

11. 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.

12. Departmental records show that Shiv Chahal Pty Ltd has approval as a standard business sponsor, valid from 23 August 2016 until 23 August 2021. As such, the requirement of r.2.72(4) is met.

    Identification of the nominee

13. 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.

14. The application for nomination form submitted to the Department identifies Mr Ajay Singh as the visa applicant who will work in the nominated occupation. As such, this requirement is met.

    Requirements for existing Subclass 457 visa holders

15. 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.

16. 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

17. 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.

18. The applicant stated in the nomination application form submitted to the Department that the nominated occupation is Cook, with the corresponding ANZSCO code of 351411.

19. The nomination also provides the location at which the nominated occupation is to be carried out, being an address in Blackrock, Victoria.

20. For these reasons the requirements of r.2.72(8A) are met.

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

21. 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.

22. The application form submitted to the Department contains the necessary certification. As such, the requirement of r.2.72(8B) is met.

    No adverse information known to Immigration

23. 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.

24. Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to Immigration (or the Tribunal) about the applicant or any person associated with it.

25. Accordingly, the Tribunal is satisfied the requirements of r.2.72(9) are met.

    Specified occupation

26. 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.

27. In determining whether the nominated occupation corresponds to the an occupation in the specified instrument, the Tribunal has had regard to the skills level and tasks of the occupation as described in ANZSCO, the position description provided by the applicant, the written submissions and Mr Kumar’s oral evidence.

28. At the hearing, Mr Kumar provided detailed oral evidence about the operations of his restaurant, the business' employees and their role on the business. Mr Kumar also provided detailed evidence about the tasks undertaken by the nominee, who has filled the role, part time from 2014 (whilst on a student visa) and full time since 2017. On the basis of Mr Kumar's evidence, which the Tribunal found to be credible, consistent and supported by the documentary evidence, the Tribunal is satisfied that the tasks of the position are consistent with the tasks of the occupation of cook. The Tribunal is also satisfied that the position is not in a factory setting or in a limited service restaurant.

29. Given the above, the Tribunal finds that the nominated occupation of cook and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument and that the caveat conditions specified in the instrument do not apply in this case. For these reasons the requirements of r.2.72(10)(aa) are met.

30. 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). The Tribunal is satisfied that this is not the case here.

    Terms and conditions of employment

31. 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.

32. 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).

33. '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.

34. 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).

35. 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 (currently $250,000): r.2.72(10)(AB).

36. Based on the evidence before it, the Tribunal finds that the nominee's current annual earnings consist of his base salary of $54,000 plus 9.5% superannuation as per the contract of employment dated 10 October 2018. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied 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.

37. The Tribunal is satisfied from the documentary evidence provided by Mr Kumar that there is no Australian citizen or permanent resident performing equivalent work at the same location.

38. Accordingly, the Tribunal must determine the terms and conditions of employment that would otherwise be provided to an equivalent Australian employee by a method specified in instrument IMMI 09/113.

39. Having regard to IMMI 09/113, the Tribunal is satisfied that the Restaurant Industry Award 2010 includes the occupation of Cook. Under this award the adult full time weekly rate for a Cook – grade 1 is $742.30 (or approximately $38,599.60 per year), $767.80 per week for a Cook – grade 2 (or approximately $39,925.60 per year), $809.10 per week for a Cook – grade 3 (or approximately $42,072.20 per year), $859.80 for a Cook – grade 4 (or approximately $44,709.60 per year), and $882.80 for a Cook – grade 5 (or approximately $45,905.60 per year), in addition to which there are various loadings for weekend work and other overtime. It is not entirely clear to the Tribunal whether this would be applicable to the nominated position or not. The applicant did not claim to have based the nominee's salary on this, but instead used market rates as advised by his accountant. Therefore, the Tribunal considers it appropriate to have regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.

40. The Tribunal has consulted a range of sources of information, including:

    ·    the Government's Job Outlook website (accessed January 2019) which indicates that the average weekly earnings before tax for Cooks are $800 before tax (or $41,600 annually, not including superannuation) (data stated to be based on an Australian Bureau of Statistics survey undertaken in August 2015):

    ·    Payscale website ( ) report (accessed January 2019) provides a salary range for a Cook in Australia of $40,635 to $56,155, with the median salary being $53,139: for various full time Cook positions in Melbourne listed on Seek.com.au as at 22 January 2019  where a salary range is given:

    o   Cook at Guillaume, Melbourne CBD, total remuneration package of $50,000-$59,000, advertised 16 January 2019;

    o   Cook at Penola Catholic College, total remuneration package of $50,000 - $54,999, advertised on 18 January 2019;

    o   Cook at Bistro Thierry, Melbourne CBD, total remuneration package of $45,000 - $54,999.

41. The Tribunal is satisfied from the most recent salary survey information from Job Outlook, and advertisements from seek.com.au that the salary package attached to the nominated position is within the range of salaries for the occupation.

42. On balance, the Tribunal is satisfied that the nominee's salary is no less favourable than those that would be offered to the relevant Australian equivalent.

43. The Tribunal is further satisfied that the original contract of employment provided to the Department for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth).

44. 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 the equivalent Australian employee.

    Base rate of pay

45. 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 (currently $53,900).

46. 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.

47. 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 (currently $250,000): r.2.72(10AB).

48. The Tribunal is satisfied from the evidence provided that the nominee's annual earnings are $54,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc), unless the Tribunal is satisfied that the annual earnings of an equivalent Australian employee to the nominee would exceed the TSMIT and it is reasonable to disregard r.2.72(10)(cc).

49. Based on the market salary rate information assessed in paragraphs 39 to 40 above, the Tribunal is satisfied that the Payscale salary range median figure for a Cook is $53,139, which is just under the TSMIT. The Job Outlook average weekly salary annualises to $46,800, which is also below the TSMIT, but this is based on ABS information from August 2015, so the Tribunal gives it less weight than the Payscale information, which is current. Of the 3 Seek advertised positions, all include ranges that exceed the TSMIT at their upper ends.

50. On balance, considering the above information cumulatively, the Tribunal is satisfied that the base rate of pay of an Australian employee in an equivalent role to the nominated position would be higher than the TSMIT.

51. Given this finding, the Tribunal finds that r.2.72(10)(cc) is met.

    Certification under r.2.72(10)(e)

52. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the relevant instrument.

    ·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the instrument IMMI 13/067.

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant, or else is an occupation specified in IMMI 13/067; and

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in the relevant instrument.

53. Based on information before it, including in the visa application, the Tribunal is satisfied that the requisite and relevant certification has been made, and for these reasons, the requirements of r.2.72(10)(e) are met.

    Position must be genuine

54. 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.

55. At hearing Mr Kumar, described his business operations in detail. Mr Kumar is the sole owner and shareholder of Shiv Chahal Pty Ltd, trading as Sazio restaurant, bar and cafe in the bayside Melbourne suburb of Blackrock. Mr Kumar described the restaurant as an Italian restaurant that has been in operation since 2012, being a fully licensed restaurant with 72 covers, operating seven days a week, Monday to Sunday with a 5 PM to 11 PM dinner service and a lunchtime service on the weekends. Mr Kumar also outlined that in the last year they have formed a partnership with Uber eats and sales have increased by 5 to 6%.

1. Mr Kumar outlined to the Tribunal that in mid-2018 he opened a second restaurant called Alforno on in Bentleigh on Centre Road. Mr Kumar stated that this had the same menu as Sazio and that as it was a new restaurant the majority of his time was spent there as he was focused on building it up, as such he relies on the nominee a great deal.

2. Mr Kumar stated that the nominee runs the kitchen, and went through his duties. The nominee’s duties, as stated by Mr Kumar, were consistent with the position description before the Tribunal as well the ANZSCO for the occupation of Cook. Mr Kumar further outlined that the nominee works full-time, 38 hours per week, with Monday and Tuesday off, and that he has had this work pattern for the last 1.5 years. Mr Kumar outlined that the nominee was being paid $27.30 per hour. Mr Kumar addressed the delegate’s concerns in the decision record regarding the increase in pay rate for the nominee. Mr Kumar outlined that the nominee had been working for him since 2014. That between 2014 and 2017 the nominee worked part-time as he was on a student visa studying cookery and hospitality. Mr Kumar said that whilst the nominee was studying, he was not fully qualified, therefore, was paid a lower pay rate of a trainee. Mr Kumar said that once the nominee had completed all of his qualifications and began working full-time as a qualified cook, the pay rate was increased.

3. At the hearing Mr Kumar provided detailed evidence about the operations of the restaurant, its annual turnover, seating capacity, the business' employees and their tasks and the efforts he has made to secure a full time cook over the last few years. Mr Kumar said that the turnover of staff was high, and that it was hard to find staff because of the evening and weekend work, coupled with the restaurant being in the suburbs and a lack of regular public transport close by.

4. The Tribunal also has before it numerous photographs of the business' premises. It has also had regard to the business' website and various online reviews about the restaurant, the quality of its food, the level of service provided and recommendations. The Tribunal has also had regard to financial reports and activity statements provided to the Department and to the Tribunal.

5. On the totality of the evidence, the Tribunal is satisfied that the restaurant operates 7days a week and that it requires a cook in the kitchen during its opening hours. The Tribunal is satisfied that the restaurant employs three cooks, including the nominee. The Tribunal is satisfied, on the basis of the financial records, that the business has experienced a growth in its turnover over. The Tribunal is also satisfied that the restaurant generally enjoys good reviews from its patrons as indicated by feedback online.

6. Having regard to the nature, size and activities of the business, the tasks to be undertaken in the position and the nominee's background, the Tribunal is satisfied on the totality of the evidence that the position of cook, as identified in the nomination, is genuine. For these reasons, the requirements of r.2.72(10)(f) are met.

   Employment under contract

7. 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.

8. The applicant has provided to the Tribunal a written contract signed 10 October 2018 which sets out the terms and conditions of employment and confirms the annual salary of $54,000, exclusive of superannuation and packaged benefits. Therefore the requirements of r.2.72(10)(h) are met.

   Work agreements

9. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11) and (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.

10. The applicant is not a party to a work agreement, and for this reason the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

11. 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.

12. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant instrumnet. In addition:

    ·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

13. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

14. The Tribunal is satisfied that the applicant is not exempt from having to provide evidence of labour market testing, and has reviewed what was provided to the Department with the nomination. This indicates that the nominated position was advertised in January 2016 on the Seek.com website.

15. For these reasons, the labour market testing requirements in s.140GBA are met.

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

    DECISION

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

    Cathrine Burnett-Wake
    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.