The Trustee for Cinderella Trust (Migration)

[2021] AATA 327

The Trustee for Cinderella Trust (Migration) [2021] AATA 327 (3 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Cinderella Trust

CASE NUMBER:  1804612

HOME AFFAIRS REFERENCE(S):          BCC2017/1004842

MEMBER:K. Chapman

DATE:3 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination. 

Statement made on 03 January 2021 at 1:09pm

CATCHWORDS

MIGRATION – nomination – Café or Restaurant Manager – not a genuine position – business cancelled by ASIC – no longer trading – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359(2), 362B
Migration Regulations 1994, Schedule 2, r.2.72

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 31 January 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, The Trustee for Cinderella Trust, applied for approval on 14 March 2017. The director of the trustee company, Paddington (QLD) Pty Ltd, is Ms Cindy Li. The applicant nominated Mrs Xingrui Yang (‘the nominee’) in the occupation of Café or Restaurant Manager. This occupation is coded as number 141111 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The nominated position is purportedly located at the Blue Lotus Coffee House in Kelvin Grove.

3. 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.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f), due to a lack of satisfaction that the position associated with the nominated occupation of Café or Restaurant Manager is genuine. On 21 February 2018, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review. Additionally, the applicant submitted material including, but not limited to, photographs (including depictions of the director of the applicant with then Mayor of Ipswich Paul Pisasale), identity documents, travel information, commercial documentation, supporting letters, statement of the director and submissions. All submitted material has been duly considered by the Tribunal.

5. On 4 August 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response the Tribunal received material including, but not limited to, Trust documentation, taxation information (including taxation returns and BAS), ASIC records, sponsorship notification, visa grant information, organisation staff list, job description, education records of the nominee, identity documents, nominee resume, employment contract and English language testing results. All submitted material has been duly considered by the Tribunal.

6. On 19 October 2020, the Tribunal wrote to the applicant, through their registered migration agent Mr Jiang Su (‘the representative’), inviting them to attend a review hearing by telephone scheduled for 10:30am on Tuesday 17 November 2020. The representative wrote to the Tribunal on 12 November 2020 requesting an adjournment of the scheduled hearing as the director of the applicant, Ms Cindy Li, was unavailable due to travel associated with her other business interests. With this request the applicant submitted a letter from Ms Li dated 13 November 2020 advising of her travel in connection with her export business, an appeal statement, bills of lading, correspondence from the Lord Mayor of Brisbane dated 23 May 2018 in relation to other business interests of the director, and a letter from Brisbane City Council dated 19 March 2018 regarding a visiting delegation from China. All submitted material has been duly considered by the Tribunal. A Tribunal Officer subsequently confirmed with the representative that Ms Li was returning to Brisbane on 20 November 2020.

7. Following careful consideration, the Tribunal granted a postponement of the initially scheduled review hearing. On 16 November 2020, the Tribunal wrote to the applicant, through the representative, inviting them to attend a review hearing by telephone scheduled for 10:30am on Monday 14 December 2020. The Hearing Invitation clearly advised that if an adjournment was not granted, then the review hearing will proceed and that if the applicant failed to attend the scheduled review hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before it. The Hearing Invitation also requested the applicant to submit a ‘Response to Hearing Invitation’ outlining matters such as any witnesses or interpreting services required. They failed to do so.

8. On 7 and 11 December 2020, the Tribunal sent automated messages by short message service (SMS) to the mobile telephone number of the director of the applicant listed in the application for review. These messages reminded the applicant of the scheduled review hearing. No automated error message was received by the Tribunal in relation to these messages.

9. The applicant failed to attend the review hearing scheduled on 14 December 2020. A Tribunal Officer attempted to call the director of the applicant, Ms Li, numerous times on that day, however she did not answer her telephone. On same day, the Tribunal Officer also spoke to the representative twice on the telephone, with the latter indicating he was unable to make contact with the director of the applicant. The representative opined that the director ‘may be in a meeting,’ but did not provide any supporting evidence for this speculation. No request for adjournment was made by the applicant in relation to the review hearing rescheduled for 14 December 2020.  

10. On 15 December 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting them to provide comments on, or response to, the following information:

    a.“The ASIC database, as at 14 December 2020 (see enclosed extract), indicates that the Business Name ‘Blue Lotus Coffee House’ was cancelled on 9 April 2020.”

11. The above correspondence outlined that this information is relevant to the review as it tends to suggest that the position associated with the nominated occupation is not genuine. Further, the applicant was advised that if the Tribunal relies on this information in making its decision, it may affirm the decision under review to refuse to approve the application for nomination.

12. On 29 December 2020, the applicant responded to the s.359A invitation through an email of the representative, attaching a letter from the director of the applicant (Ms Li) and a copy of the ASIC Record of Registration for Business Name dated 1 December 2016 indicating validity until 1 December 2019. In summary, Ms Li contends that she ‘forgot’ to renew the business name, did not receive the reminder email from ASIC regarding this and asked if a renewed copy was required. The Tribunal has carefully considered the applicant’s response to the s.359A invitation. It is worth pausing to reflect that no reference was made to the applicant’s non-attendance at the rescheduled review hearing listed for 14 December 2020.

13. The Tribunal is satisfied that the applicant was notified of the rescheduled review hearing listed for 14 December 2020 pursuant to the statutory requirements. The Tribunal notes that the applicant did not display the courtesy to submit a ‘Response to Hearing Invitation’ and that the director of the applicant was provided SMS reminders of the scheduled review hearing. Furthermore, no adjournment request was made in respect of the rescheduled review hearing and no reference was made to the applicant’s non-attendance in its response to the s.359A invitation dated 15 December 2020. On balance, the Tribunal is satisfied that the applicant has been provided with a fair opportunity to attend a review hearing if they wished to do so.

14. The Tribunal has also paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making processes. Further, the Tribunal has had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment. The Tribunal has accordingly carefully considered all of the circumstances pertaining to the present application for review in considering whether to grant an adjournment, even though one has not been requested.

15. Given that the applicant was previously granted a postponement of the initial scheduled review hearing, was duly notified of the rescheduled review hearing, failed to submit a ‘Response to Hearing Invitation’ regarding the rescheduled review hearing, and no reasonable explanation for the non-appearance of the applicant at the rescheduled review hearing has been submitted, the Tribunal has decided not to delay its decision making process any further. Accordingly, the Tribunal has determined to make its decision on the review without taking any further steps to enable the applicant to appear before it pursuant to s.362B of the Act.

16. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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). In addition, for nominations made from 23 November 2013, s.140GBA must be met.

    Position must be genuine

18. 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.

19. The applicant nominated the occupation of Café or Restaurant Manager which is coded as number 141111 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The nominated position is purportedly located at the Blue Lotus Coffee House in Kelvin Grove. For the following reasons, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.

20. The Tribunal has carefully considered the evidence before it concerning the purported operations of the applicant and the business interests of its director. Whilst the Tribunal accepts that the director has ongoing business interests pertaining to exports to China (with her previously engaging with the Lord Mayors of Brisbane and Ipswich on various occasions) and that she travels frequently, it is not satisfied that the Blue Lotus Coffee House is genuinely trading at the time of this decision. Having regard to the submitted financial information of the applicant, it is apparent that there is a dearth of information pertaining to the financial status of the Blue Lotus Coffee House at the time of this decision. Indeed, there is an absence of submitted evidence to demonstrate the financial performance of the applicant from April 2020 until the present time. This causes concern for the Tribunal that the Blue Lotus Coffee House is not still genuinely trading.

21. The Tribunal has also developed concerns, regarding the operational status of the Blue Lotus Coffee House, given the particulars of certain portions of the submitted financial evidence. For instance, the submitted handwritten Taxation return of the applicant for the financial year ending 30 June 2019 indicates a net loss of $3,978 was incurred. Furthermore, the submitted handwritten Business Activity Statements for October-December 2019 and January-March 2020 have correction fluid on them, which calls into question their veracity. As previously noted, there is no persuasive evidence before the Tribunal to indicate that at the time of this decision the Blue Lotus Coffee House remains genuinely trading and financially viable. On balance, the Tribunal is not satisfied that the applicant, trading as the Blue Lotus Coffee House, is genuinely trading and has the requisite finances to sustain the nominated position.

22. The applicant also submitted an organisational chart to the Tribunal in August 2018 indicating at that time the Blue Lotus Coffee House employed a part time Chef, a part time Kitchen Hand and a part time Waitress, in addition to the nominee and the director as the proprietor. The Tribunal considers that this staffing composition is suggestive of the nominee not performing the majority of the duties of a Café or Restaurant Manager, given the limited amount of full time employees in the business, and also that the position associated with the nominated occupation is not genuine. The Tribunal notes that there is no contemporary material before it to confirm the current staffing composition of the Blue Lotus Coffee House, or that it genuinely employs any individuals at the present time.

23. The Tribunal notes that the business name, Blue Lotus Coffee House, was cancelled by ASIC on 9 April 2020. Having regard to the concerns developed by the Tribunal in relation to the submitted financial material, in combination with the reticence of the director to attend the scheduled review hearing, it does not accept that Ms Li simply forgot to renew the registration of the business name. Indeed, it is worth pausing to reflect that the applicant did not submit any persuasive evidence to indicate that they were attempting to re-register the business name having been notified of the cancellation of the registration. Rather, the Tribunal forms the view that the cancellation of the business name is suggestive of the Blue Lotus Coffee House no longer genuinely trading.

24. On balance, the Tribunal is not satisfied that the Blue Lotus Coffee House is currently a financially viable business that is genuinely trading. Further, the size and organisational structure of that business suggest the nominee would not perform the majority of the duties of a Café or Restaurant Manager even if it were to trade in the future. It is worth pausing to reflect that the applicant has been provided with a fair opportunity to submit evidence to the Tribunal regarding the current operations of the Blue Lotus Coffee House but has failed to do so.

25. Therefore, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(f) are not met.

26. Given the above findings, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

27. The Tribunal draws the attention of the Department to its concerns regarding the submission of Business Activity Statements with correction fluid used upon them, and the lapsing of the Business Name Registration, for its consideration regarding possible referral of the applicant, Ms Cindy Li or Mr Jiang Su (MARN 0742634) to other relevant agencies.

    DECISION

28. The Tribunal affirms the decision not to approve the nomination.

    K. Chapman
    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.