Synergy Access Solutions Pty Ltd (Migration)

[2017] AATA 962

Synergy Access Solutions Pty Ltd (Migration) [2017] AATA 962 (14 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Synergy Access Solutions Pty Ltd

CASE NUMBER:  1511870

DIBP REFERENCE(S):  BCC2015/2020278

MEMBER:Antonio Dronjic

DATE OF ORAL DECISION:  14 June 2017

DATE OF WRITTEN STATEMENT:         15 June 2017

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 15 June 2017 at 9:37am

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) visa applicant – Genuine position – Contract Administrator – Nominee previously employed in same role with competitor – Employed offshore by sponsor – Tasks corresponds with ANZSCO

LEGISLATION

Fair Work Act 2009

Migration Act 1958, ss 140GB, 140GBA, 140GBB, 140GBC, 359(2)

Migration Regulations 1994, r 1.13A, r 1.13B, r 2.57, r 2.57A, r 2.72, r 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 Immigration on 21 August 2015 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 14 July 2015. 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) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation is genuine.

4. The applicant applied to the tribunal on 31 August 2015 for review of the delegate’s decision. With the review application, the applicant submitted:

   ·Copy of the primary decision record;

   ·Letter from Mr McKellar dated 31 August 2015;

   ·Copy letter dated 22 July 2015 submitted to the department by Mr McKellar;

   ·Copy employment agreement containing a position description dated 29 June 2015; and

   ·Copy design and construct subcontract.

5. On 20 February 2017 the tribunal sent a letter to the applicant which contained a request to the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 2.72 of the Migration Regulations. The request was made pursuant to section 359(2) of the Act.

6. On 3 March 2017, the applicant’s representative submitted the following documents:

   ·Legal submissions outlining the nature of the sponsoring business, number of employees and addressing the criteria in r 2.72;

   ·Current business financials showing the growth in fiscal years during the past three financial years;

   ·Current balance sheet for the business;

   ·Business plan for the growth of the business;

   ·Submission by the director of Synergy Access Solutions addressing the genuine position requirement;

   ·Statutory declaration by the director of Synergy Access Solutions;

   ·Signed employment contract between Synergy Access Solutions and Mr Samuel Brennan;

   ·Detailed position description for the role offered to Mr Samuel Brennan;

   ·Market salary data information as referred in the submissions above;

   ·BAS statements; and

   ·Cash flow projection prepared by the company’s accountant with the covering letter dated 23 January 2017.

7. On 3 April 2017, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 14 June 2017.

8. Mr Allan McKellar, the Managing Director of the sponsoring business appeared before the Tribunal on 14June 2017 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent who attended the tribunal hearing.

9. Mr McKellar confirmed that he had submitted statutory declaration dated 21 January 2017 and that everything stated in the Declaration is true and correct.

10. The sponsoring business was incorporate in July 2010. Mr Allan McKellar and his wife are shareholders and Mr McKellar is the sole director of the business. Synergy Access Solutions are specialists in roof access solutions and safety, currently servicing the entire region of Victoria. This company specialises in the design, supply and installation of professional roof access and fall arrest solutions.

11. The business employs six full time employees including Mr McKellar and his wife, two casual employees and six subcontractors. The nominee has been working for the sponsoring business as an offshore contractor managing work in contract administration for the sponsoring business during the period of past 18 months. According to Mr McKellar’s evidence, the nominee has been involved in negotiating and drafting over 30 contracts during this period. He is paid a weekly retainer fee of between $1,100 and $1,400.

12. The nominee has previously worked in Australia with Roofsafe Industrial Safety, a company which is a direct competitor to Synergy. The nominee was the contracts administrator for Roofsafe Industrial Safety from March 2013 until May 2015 as a holder of a 457 visa and this is how Mr McKellar got to meet Mr Brennan.

13. Mr McKellar gave evidence that the contracts currently underway and in negotiation require a high level of understanding both from an industry and contractual basis. The Contracts Administrator employed in this industry must have specialist knowledge in the materials and design, and be able to understand the complexities and highly technical engineering side of these contracts to see how all parties fit into the picture. The Contracts Administrator is the person who communicates on all matters related to the contracts agreed upon and assists Synergy to execute their projects. He presented to the tribunal samples of two contracts containing over 150 pages each.

14. Mr McKellar gave evidence that he is currently undertaking some of the task required from a Contract Administrator. He is working between 60 and 70 hours per week and is unable to focus on expansion and marketing agendas due to the time consumed on administrating various contracts. By employing a full time Contract Administrator, the business will be in position to take on more contracts while ensuring they are safely and correctly executed in such a manner as to not jeopardy the integrity of the business and its key clients.

15. Mr McKellar stated in his evidence that the nominee possesses the required skills, background knowledge and work experience for this position. This opinion is based on the consulting work that the nominee has been doing for the company for the past 18 months as well as on his relevant training and certifications.

16. Mr McKellar stated that the nominee possesses the required expertise in the review, monitoring and recording of all-important data and in reviewing all aspects of the agreements with clients, main contractors, sub-contractors and site managers. He also has experience in handling contractual agreement matters with all third parties and has gained valuable knowledge in Australia in implementing site-specific risk assessments and WH&S into the contractual agreements.

17. 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

18. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

    The nomination must comply with the prescribed process

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

20. The tribunal is satisfied that the applicant company made the application in accordance with the approved form, and paid the prescribed fee, as it was at the time of application. The tribunal is satisfied that this form identified the person proposed to work in the occupation, the ANZSCO code of the occupation and the location of the occupation.

21. On the basis of the Business Nomination Visa form the tribunal is satisfied that the nominating employer has provided the necessary certification stated in r.2.72(10)(d) or (11)(b) (regarding tasks, qualifications and experience).

22. The tribunal finds that r.2.72(3) is satisfied.

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

23. 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.

24. On the basis of the DIBP records for the Synergy Access Solutions Pty Ltd, the tribunal finds that the applicant was approved as a standard business sponsor for a five year period commencing on 21 July 2015 and that this status remains in effect.

25. The tribunal finds that r.2.72(4) is satisfied.

    Identification of the nominee

26. 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.

27. On the basis of the information provided in the Business Nomination Visa form the tribunal is satisfied that that the applicant has identified the person to undertake the nominated occupation and that he is a subclass 457 visa applicant.

28. The tribunal finds that r.2.72(5) is satisfied.

    Requirements for existing Subclass 457 visa holders

29. 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.

30. 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

31. 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.

32. The applicant stated in the nomination application form that the nominated occupation is Contract Administrator and provided the corresponding ANZSCO code of 511111. The applicant has recently confirmed this information. The location at which the occupation is to be carried out is also included in the nomination.

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

    No adverse information known to Immigration

34. 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.

35. There is no evidence before me to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an ‘associated person’.

36. For these reasons I am satisfied that the requirements of r.2.72(9) are met.

    Specified occupation

37. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

38. The tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of a Contract Administrator and corresponding ANZSCO code appear on the relevant list in the relevant instrument. The instrument does not require that the nomination be supported in writing by a specified organisation.

39. I am satisfied that the caveat introduced by the relevant instrument on 19 April 2017 does not apply as the evidence provided clearly indicates that the nominee has more than two years relevant work experience in the same or a similar occupation. The evidence before me indicate that the applicant was previously sponsored by another Australian business who is the competitor to the current sponsor and is involved in the same industry The nominee was successfully nominated to work in the same occupation. He was granted a subclass 457 visa on 29 October 2013 and this visa ceased on 3 March 2016.

40. For these reasons the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

41. 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.

42. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

43. 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 the relevant instrument: r.2.72(10AA).

44. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the relevant instrument : r.2.72(10)(AB).

45. In addition, r.2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment will be greater than the Temporary Skilled Migration Income Threshold specified by the Minister in an instrument (although this may be waived if the circumstances in r.2.72(10A) exist). The current Temporary Skilled Migration Income Threshold (TSMIT) for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028.

46. On the basis of the contract of employment which specifies a salary of $80.000 (including superannuation), which is under the threshold of $250,000, the tribunal finds that the requirements in in r.2.72(1)(c) and r.2.72(10)(cc) apply in this case.

47. The applicant indicated that there is no Australian citizen performing equivalent work at the same location. The applicant has submitted research regarding the market salary rates, including job vacancy advertisements for similar roles in the same location. On the basis of this evidence, the tribunal considers the market rate of pay to be equal to that offered to the applicant. The tribunal is accordingly satisfied that the proposed terms and conditions of employment for the nominated person are no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing equivalent work in the applicant’s workplace at the same location: r.2.72(10)(c) is therefore satisfied.

48. As the pay of $80,000 (including superannuation) for the nominated position exceeds the current TSMIT of $53,900, the tribunal finds that r.2.72(10)(cc) is also satisfied.

    Certification under r.2.72(10)(e)

49. 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 relevant instrument;

    ·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 the relevant instrument; 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.

50. The applicant has provided evidence to the department and the tribunal at review that the position includes the tasks of the nominated position of a Contract Administrator listed in ANZSCO. The applicant is lawfully operating a business in Australia and the nominated position is within the company. Having regard to the occupational duties of the position the tribunal finds that the position includes the majority of tasks of the nominated occupation as outlined in ANZSCO.

51. The tribunal is satisfied on the basis of the relevant certifications in the application form that r.2.72(10)(e) is met.

    Position must be genuine

52. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

53. The tribunal has carefully considered the applicant’s evidence regarding the ongoing need for the position. Not all occupations are included as part of the nomination approval process. To maintain integrity of the nomination and visa process the tribunal must consider whether the position can properly be described as that of a Contract Administrator.

54. The tribunal has had regard to the ANZSCO description of the occupation of Contract Administrator. While it is not bound by that description the tribunal is satisfied that the position would involve the type of duties outlined in the ANZSCO.

55. The tribunal has taken into account the evidence regarding the business’s turnover, the position description, the offer of employment, the organisational chart, the financial documents and the statement of need provided by the applicant.  Having regard to the information provided in the application form, including the relevant certifications provided by the applicant, as well as the updated information given to the tribunal regarding the role, the tribunal is satisfied that the position associated with the nominated occupation is genuine.

56. The nominee has been working for the sponsoring business as an offshore contractor managing work in contract administration for the sponsoring business during the period of 18 months. According to Mr McKellar’s evidence, the nominee has been involved in negotiating and drafting over 30 contracts during this period.

1. He has worked in Australia with Roofsafe Industrial Safety, a company which is a direct competitor to Synergy. The nominee was the contracts administrator for Roofsafe Industrial Safety from March 2013 until May 2015 as a holder of a 457 visa.

2. On behalf of the sponsoring business, Mr McKellar gave evidence that the nominee has good understanding of the business operations and stated his satisfaction with the nominee’s performance. Based on the evidence before me I am satisfied that the nominated position is very specialised and specific for the roof access and fall arrest solutions industry. He also gave a thorough account of the nominee’s role in the business. The tribunal accepts that it is at a level consistent with that of Contract Administrator as listed in ANZSCO. Further financial information was also provided which demonstrated the strong growth of the business. The tribunal also found the oral evidence at the hearing to be plausible and convincing. On the basis therefore of this additional information and the applicant’s current circumstances the tribunal is satisfied that there is a genuine need for the position and the requirements of r.2.72(10)(f) are met.

   Employment under contract

3. 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.

4. The applicant has submitted to the tribunal an employment contract for the nominee setting out the main terms and conditions of employment.

5. I find on the basis of the evidence before me that r.2.72(10)(h) are met.

   Work agreements

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

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

   Labour Market Testing

8. 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.

9. 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 instrument.

10. In this case, the nominated occupation is Contract Administrator. This occupation is classified as Skill Level 2 in the ANZSCO dictionary. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In addition, the position description for the nominated position indicates that the minimum required qualifications for the position are a qualification equivalent to an AQF Associate Degree, Advanced Diploma or Diploma or at least 3 years relevant experience. In these circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the labour market testing condition in s.140GBA.

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

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

    DECISION

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

    Antonio Dronjic
    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)a standard business sponsor; or

    (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.

    (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

    (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 that:

    (i)       are provided; or

    (ii)      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.