STAR SEED PTY LTD (Migration)

[2022] AATA 3115

STAR SEED PTY LTD (Migration) [2022] AATA 3115 (18 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Star Seed Pty Ltd

CASE NUMBER:  1904064

HOME AFFAIRS REFERENCE(S):          BCC2018/768289

MEMBER:Namoi Dougall

DATE:18 July 2022

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 18 July 2022 at 5:10pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – Chef – Tribunal is satisfied that the restaurant is not a limited service restaurant – position associated with the nominated occupation is genuine – no less favourable terms and conditions of employment –– decision under review set aside

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

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 5 February 2019 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 15 February 2018. 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)(f) because the delegate was not satisfied that the position associated with the nominated occupation, Chef (ANZSCO 351311) was genuine. Although some of the duties appeared on face value to be consistent with those of the nominated occupation, the delegate was not satisfied that, in the context of the applicant’s business, the majority of the tasks actually performed would align substantially with the tasks of the nominated position.

4. The director of the applicant, Mr Hugh Cashmere, appeared on behalf of the applicant before the Tribunal on 9 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Yun Ju Bae, the nominee.

BACKGROUND

1. The business nomination application lodged by the applicant with the Department stated that the nominee would be employed as a Chef on a base rate of pay of $58,000 at the location of Hillston, NSW. The application also stated that there are no Australian employees performing equivalent work to the nominated position in the business and, if there was, the salary they would be provided would be $56,000. The applicant stated in the application, when requested to provide information on determining what an equivalent Australian worker would earn, Hospitality Award.

2. At the hearing Mr Cashmere stated that the applicant is the company they use to run the motel and restaurant while the buildings and equipment are owned by another company, Silverstar Investment Group. The applicant was established in June 2016 and the motel had been bought in 2010 with the restaurant opening in 2012. The motel and restaurant were very run down so they renovated and got the business up and running including buying a block next door so the business could have another accommodation block.

3. At the hearing Mr Cashmere stated that the restaurant is a full service restaurant with a bar. It is open 5 days from Tuesday and the business hours are from 4:00 pm to around 9:30 pm for last orders. The restaurant used to open for lunch but that ceased because of the COVID-19 pandemic but they started takeaway deliveries which have proved to be popular so they will continue with delivery of takeaway meals.

4. 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 Ms Yun Ju Bae in the nomination. The nomination includes the location of Hillston, 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 18 December 2018 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 Ms Bae, 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 regs 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 Hillston, NSW, 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. 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.

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 18/005 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. Caveat 7 is not applicable to the circumstances of the applicant’s business. In relation to caveat 8, ‘limited service restaurant’ is defined in IMMI 17/060 and includes the following:

   (a) a fast food or takeaway food service;

   (b) a fast casual restaurant;

   (c) a drinking establishment that offers only a limited food service;

   (d) a limited service cafe, including a coffee shop or mall cafe;

   (e) a limited service pizza restaurant.

4. The Department’s Procedures Advice Manual (PAM3) provides the following guidance on assessing whether the ‘inapplicability conditions’ apply:

   A caveat is in place for this occupation which excludes positions involved in mass production in a factory setting and positions in a limited service restaurant. A limited service restaurant includes, but is not limited to, the following:

   fast food or takeaway food services;

   fast casual restaurants;
   drinking establishments that offer only a limited food service;
   limited service cafes;

   limited service pizza restaurants…

   This caveat is designed to ensure that in the context of this occupation, employer sponsored skilled visa programs continue to be used for skill level 3 cook positions only – that is, positions in a dining establishment that involve preparing, seasoning and cooking food.

5. In exercising its power on review, the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal: Re Drake and MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380. The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or, in the case of the exercise of a discretionary power (which is not relevant in the circumstances of this case), the preferable decision: Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jacobson JJ) at [34].

6. As referred to above, at the hearing Mr Cashmere stated that the restaurant is a full service restaurant. A seating plan and photos of the restaurant indicate that the restaurant has seating for 47 inside and 28 outside. The restaurant is open 5 days a week from 4:00 pm to 9:30 pm. The Tribunal has been provided with the restaurant’s food and beverage menu, which includes alcoholic drinks.

7. On the evidence the Tribunal is satisfied that the restaurant is not a limited service restaurant as defined in the relevant legislative instrument.

8. 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 reg 2.72(10)(aa) are not met.

9. The relevant instrument does not require the nominated occupation of Chef 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).

2. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: 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.

3. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: reg 2.72(10AA).

4. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 which is $250,000: reg 2.72(10AB). The nominee’s earnings are less than those specified in the instrument.

5. In the current circumstances of this review the other Chef and casual cooks are all foreign so there are no Australian employees performing equivalent work at the same location.

6. The Tribunal has been provided with an employment contract for the nominee dated 15 February 2018 and an updated employment contract dated 10 June 2021, both signed by the director of the applicant, Mr Cashmere, and the nominee. The updated contract indicates that the nominee will be employed as a Chef and indicates that the rate of pay was $67,273 per annum which includes a rent subsidy of $150 per week and her superannuation. The contract also indicates that unless more generous provisions are provided by the letter or in its schedule then the terms and conditions of the nominee’s employment will be those set out in the Hospitality Industry (General) Award 2010 [now 2020] MA000009 (the Award) and this also includes the National Employment Standards in the Fair Work Act2009.

7. The Tribunal referred to the employment contract dated 10 June 2021 which provided that the nominee would earn $67,273 per annum inclusive of the superannuation guarantee and rent subsidy of $150 per week. The Tribunal explained that if the superannuation guarantee is taken out of the salary the nominee may not be receiving an annual salary not less than an Australian equivalent. Further, the net salary may be less than the temporary skilled migration income threshold (TSMIT). Mr Cashmere contacted his accountant and stated that the gross salary was $61,157.72 exclusive of superannuation. If the rent subsidy of $7,800 is taken out of the salary then the amount is $53,357.72. Mr Cashmere confirmed that the nominee is a level 4 Chef. Further, the applicant provides a vehicle to the nominee for her exclusive use. The Tribunal is satisfied that the nominee’s earnings are, as defined in reg 2.57A, her salary and the rent subsidy as the subsidy is an amount that is applied or dealt with on the nominee’s behalf, therefore, the nominee’s earnings are $61,157.72 per annum.

8. The current 2020 Award provides that the minimum wage for a Cook grade 4 is $955.90 per week which is the equivalent of $49,706.80 per annum. This is considerably less than the nominee’s earnings.

9. The Tribunal at the hearing discussed whether the applicant has the financial capacity to continue to provide to the nominee the terms and conditions including annual earnings that are not less than an Australian equivalent. The Tribunal stated that there was a sudden increase in the property plant and equipment. Mr Cashmere stated that a large solar farm has been built and the employees stayed with them from last year and some stayed in the motel until February or March 2022. The Tribunal asked if that now meant the finances will not be as healthy from March 2022 and Mr Cashmere stated that the Pacific Islanders are staying in the accommodation and have been contracted for number of years to help pick the citrus fruit. This means that the applicant’s profit will not have dropped off.

10. After the hearing, the Tribunal was provided with a depreciation schedule for the applicant’s property plant and equipment which indicated that a large amount of new plant and equipment had been purchased from 2 July 2019, however, prior to that no equipment had been purchased since 24 November 2017 which explains the increase in amount in the line item in the balance sheet for property plant and equipment. Further, the Tribunal was provided with a draft internal profit and loss statement which indicated that as at 31 May 2022 the turnover was $805,193 and the profit was $96,452. Therefore, the Tribunal is satisfied that the applicant has the financial capacity to provide to the nominee the terms and conditions of an equivalent Australian worker.

11. On the above, the Tribunal is satisfied that the proposed salary package for the nominee of $61,157.72 plus superannuation guarantee attached to the nominated position is within the range of salaries that an Australian equivalent would earn for the occupation, and it is, particularly, on average for an employee who has the same level of experience, therefore, the Tribunal is satisfied that the nominee’s earnings are no less favourable than that which would be offered to the relevant Australian equivalent.

12. 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, and 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 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. In this case the nominee’s annual earnings are $61,157. As this is not equal to or greater than the threshold of $250,000 specified in IMMI 13/028 reg 2.72(10)(cc) applies.

1. Based on the evidence at hearing and the employment contract dated 10 June 2021 the nominee’s salary is $61,157. The applicant’s business nomination application referred to the Hospitality Award as relevant to determining terms and conditions for an Australian equivalent worker. Provided to the Tribunal was a screenshot of the minimum pay rates for levels 3 to 6 under the Hospitality Industry (General) Award 2010 MA000009. The Tribunal notes that the current Award is dated 2020 and that the current rates of pay for a Cook (tradesperson) grades 4 and 5 have increased to $955.90 and $981.50 or $49,706.80 and $51,038 per annum respectively.

2. The Tribunal is satisfied that the nominee’s annual earnings of $67,273 are greater than the annual earnings of an Australian equivalent worker and greater than the TSMIT of $53,900. For these reasons, the requirements of reg 2.72(10)(cc) are 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 has had regard to the ANZSCO occupational dictionary with regard to the position of Chef (351311) and the tasks for the unit group 3513 Chef which states:

   ·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

3. Further, in relation to the occupation of Chef ANZSCO states that the occupation: “plans and organises the preparation and cooking of food in a dining or catering establishment”.

4. A position description for a Chef was provided to the Department and stated that:

   Your responsibilities would include but not be limited to:

   the preparation and cooking of food

   ordering and inventory of stock
   working within budgets
   routine cleaning
   preparation of rosters

   work in accordance with food safety and OH&S

5. At the hearing Mr Cashmere stated that the nominee is the manager of the kitchen as a Chef; she does all ordering; supervises other staff; she is responsible for OH&S, HCAPP standards and cleaning of the kitchen; all faults are reported to him; she maintains standards for food presentation; she sets the menu which is difficult as they are about 110 kilometres away from the nearest supermarket so it requires skill and management to maintain the menu; she is responsible for quality control including checking deliveries, and rostering, hiring and firing staff; and she decides on the décor of the restaurant including ordering new cutlery and plates; and if she needs new kitchen equipment she speaks to him about large items and buys the small items herself.

6. At the hearing Ms Bae stated that she orders ingredients; controls and vets food preparation; presents and demonstrates daily specials to kitchen staff; trains new kitchen staff; creates new menus and recipes; rosters staff; manages food costing; undertakes stocktaking; and manages the kitchen overall. Ms Bae confirmed that she supervises kitchen staff; is responsible for OH&S and hygiene, and ordering equipment and repairs; and she hires and fires staff.

7. On the above evidence, the Tribunal is satisfied that the nominee currently performs nearly all of the tasks listed in ANZSCO; therefore, on all the evidence, the Tribunal is satisfied that the position associated with the nominated occupation is genuine.

8. For the above reasons, the requirements of reg 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 15 February 2018 and an updated contract dated 10 June 2021. For these reasons the requirements of reg 2.72(10)(h) are met.

Work agreements

1. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 2.72(11), (12).

2. 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 the circumstances of this review labour market testing would be inconsistent with a specific international trade obligation as listed in the relevant legislative instrument IMMI 17/109 as the nominee is a citizen of South Korea. Therefore, the labour market testing requirements in s 140GBA are not applicable.

3. 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.