The Trustee for Alex and Lisa Unit Trust (Migration)

[2020] AATA 3108

The Trustee for Alex and Lisa Unit Trust (Migration) [2020] AATA 3108 (5 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Alex and Lisa Unit Trust

CASE NUMBER:  1811887

HOME AFFAIRS REFERENCE(S):          BCC2018/956380

MEMBER:Amanda Mendes Da Costa

DATE:5 March 2020

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 05 March 2020 at 9:25am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – specified occupation – Chef – inapplicability conditions – limited service restaurant – customer seatings – full table service – menu variety – food preparation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 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 6 April 2018 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 28 February 2018. 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(aa) because the delegate was not satisfied that the nominated position does not involve employment in a limited service restaurant.

4. A Call over was conducted on 17 October 2019 to discuss what evidence and information was required to satisfy Regulation 2.72.  Following the Call over a letter inviting additional information was issued.

5. Mr Alex Hutabarat, a director of the company appeared before the Tribunal at the hearing on  21 February 2020 to give evidence and present arguments. 

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

7. 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

8. 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

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

   Based on the evidence in the nomination application form and that provided directly to it, the Tribunal finds that the requirements of r.2.72(3) are met:

   · The applicant is nominating an occupation under s.140GB(1)(b): r.2.73(a);

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

   · The applicant identified the nominated visa applicant in the nomination: r.2.73(4A) and r.2.72(5); and

   ·     The nomination includes the location at which the occupation will be carried out, being 45 Sackville Street, Port Fairy, Victoria, 3284 and the name ‘Chef’ since the applicant is a standard business sponsor: r.2.73(4A).

10. The Tribunal is further satisfied that the applicant has provided the following information as part of the nomination:

    ·the information in r.2.72(8A);

    ·written certification addressing the matters in r.2.72(10)(e); and

    ·written certification as set out in r.7.72(8B).

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

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

12. 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.

13. Based on the evidence provided, the Tribunal finds that the person making the nomination is a standard business sponsor having been approved on 6 April 2018 with the period of approval ending on 6 April 2023.

14. For these reasons the requirements of r.2.72(4) are met.

    Identification of the nominee

15. 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.

16. On the basis of the evidence provided in the nomination form, the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation.  This is the nominee Nut Malarath.

17. For these reasons the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

18. 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.

19. 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

20. 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 instrument IMMI 17/060; 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.

21. The applicant clearly identified in the application form that it was nominating a ‘Chef’ ANZSCO Code 351311 to work at the location 45 Sackville Street, Port Fairy Victoria, 3284.

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

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

23. 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.

24. Having reviewed the nomination application form the Tribunal is satisfied that this certification has been made and thus the applicant meets the requirements of r.2.72(8B).

25. For these reasons the requirements of r.2.72(8B) are met.

    No adverse information known to Immigration

26. 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.

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

28. For these reasons the requirements of r.2.72(9) are met.

    Specified occupation

29. 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 instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

30. The applicant is a Standard Business Sponsor.  It nominated the position of ‘Chef’ which is specified in 17/060.   On 19 April 2017 and further on 1 July 2017 changes were made to the 457 program in respect of this occupation which is now subject to additional considerations or caveats.

31. The delegate refused the nomination because he considered that the nominated position was  based in a limited service restaurant.  The Tribunal notes that the occupation of ‘Chef’ is now subject to the following inapplicability conditions:

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

    ·     (8)  The position is in a limited service restaurant.

32. The definition of a limited service restaurant includes the following:

    ·     fast or takeaway food services;

    ·     fast casual restaurants;

    ·     drinking establishments that offer only a limited food service;

    ·     limited service cafes including, but not limited to, coffee shops or mall cafes;

33. The Tribunal notes that the Department’s Procedures Advice Manual (PAM3) includes the observation that the key factors in determining whether a business is a limited service restaurant is the way in which the food is ordered, served and consumed, not the quality of the food.  It notes that a restaurant or café which does not offer limited service,  provides meals that are cooked and served on the premises, pay on completion of the meal and with the services provided being an important factor, as well as the food.

34. Although the Tribunal is not bound to follow the provisions of PAM3  it considers them relevant to a determination of whether the applicant is operating a limited service restaurant and has accordingly had recourse to it.

35. The Tribunal further considers that factors that are descriptive of a limited service food service, may also  include the following:

    • no full table service;
    • marketing which suggests that the business is a fast food or fast casual restaurant;
    • primarily a coffee shop;
    • emphasis on speed and convenience;
    • no or limited seating with a largely takeaway service; and
    • stream-lined and limited menus with food prepared to a very standardised format and involves limited preparation.

36. Based on the evidence provided, including: the organisation chart; position description; photographs; menu and written submissions, the Tribunal is satisfied that ‘Inapplicability Conditions’ 7 & 8 do not apply to this occupation and, in particular the nominee’s position is not involved in a limited service restaurant.

37. The Tribunal is satisfied that the business has been operating for approximately three and a half years.  The applicant purchased an established (although run-down) business which it has grown.  The restaurant seats approximately 50 customers at the front of the restaurant.  In summer the applicant seats a further 20-30 customers at outdoor tables at the back of the restaurant.  Port Fairy is a popular destination for tourists with the Port Fairy Festival and other tourist activities.  Whilst in summer, the majority of the customers are tourists, the business also relies on strong support from local customers in winter.

38. The restaurant’s menu is varied and in addition to pizzas, it offers curries and Thai cuisine.  Although the restaurant provides a takeaway service, the majority of the meals are served to customers eating in the restaurant.

39. The restaurant provides customers with printed menus, table service and has a liquor licence.  Payment is made by customers at the conclusion of their meals. 

40. The Tribunal considers that the applicant’s restaurant offers full table service, has a commercial kitchen and provides appropriate seating for customers.  The menu is varied  and the Tribunal is satisfied that the majority of meals are prepared in the kitchen of the business, using fresh ingredients.

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

42. The instrument does not require that the nomination be supported in writing by a specified organisation and therefore the requirements of r.2.72(1)(b) are not applicable.

43. For these reasons the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

44. 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.

45. 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.

46. 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).

47. 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. The amount of earnings currently specified by the instrument is $250,000: r.2.72(10)(AB). As the nominee’s earnings are contracted to be $54,000, his annual earnings are not equal to or greater than that specified in IMMI 13/028.

48. As there is no Australian equivalent performing work at the same location the Tribunal has considered the methodology specified in IMMI 09/113.

49. The Tribunal has consulted the Restaurant Industry Award 2010 which shows that the minimum weekly wage for a full-time Head Chef is $941.00 per week.

50. The Tribunal has also consulted Payscale.com which indicates that the median annual salary for a Head Chef is $46,000 with a range of $31,000 to $67,000 per year.

51. The Tribunal has further consulted the Australian Government’s Job Outlook database which records the average weekly earnings of a Head Chef across Australia as $941.10.

52. Therefore, having regard to the available information, the Tribunal is satisfied that the proposed terms and conditions of employment for the nominated position are no less favourable than the earnings and terms and conditions that are provided, or would be provided to an Australian citizen or permanent resident performing equivalent work at the same location.  

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

    Base rate of pay

54. 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.

55. 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.

56. 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: r.2.72(10AB).

57. As the base rate of pay of the nominee’s annual earnings is proposed to be $54,000 (exclusive of superannuation), the base rate of pay for the nominated position is greater than the current TSMIT of $53,900. Therefore the Tribunal finds that r.2.72(1)(cc) is satisfied.

    Certification under r.2.72(10)(e)

58. 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.

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

    Position must be genuine

60. 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.

61. The Tribunal is satisfied, after reviewing the submissions and supporting documentation provided and the publically available information about the sponsor’s business, that the position associated with the nominated occupation is genuine and the requirements of r.2.72(10)(f) are met. This issue was not in contention at the primary stage.

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

    Employment under contract

63. 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.

64. A Letter of Engagement signed by the nominee and dated 22 February 2020 has been provided to the Tribunal.  It sets out the main terms and conditions of employment and the annual salary (exclusive of superannuation) of $54,000.

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

    Work agreements

66. 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.

67. 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

68. 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.

1. 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 IMMI 13/136. 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.

2. In this case, the nominated occupation of ‘Chef’ (ANZSCO Code 351311) is classified a Skill Level 2 in the ANZSCO dictionary.  Skill Level 2 designated occupations are exempt under IMMI 13/137.  Therefore evidence of labour market testing is not required.

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

   DECISION

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

   Amanda Mendes Da Costa
   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.