TRIPOD SERVICES PTY LTD (Migration)

[2018] AATA 2330

TRIPOD SERVICES PTY LTD (Migration) [2018] AATA 2330 (6 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TRIPOD SERVICES PTY LTD

CASE NUMBER:  1614893

DIBP REFERENCE(S):  BCC2016/849416

MEMBER:Amanda Mendes Da Costa

DATE:6 July 2018

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 06 July 2018 at 10:40am

CATCHWORDS
Migration – Sponsor approval – Standard business sponsor – Genuine position – Nominated occupation – Primary Products Inspector – Position Details document provided – Work tasks match ANZSCO position – Employment conditions – Tribunal considers Horticulture Awards considered  – Pay greater than the Temporary Skilled Migration Income Threshold – No adverse information – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 140GBA, 245AR
Migration Regulations 1994, rr 2.57, 2.57A, 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 Immigration on 1 September 2016 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 1 March 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl. 2.72 (10) because the delegate was not satisfied that the position associated with the nominated position was genuine.

4. The applicant seeks to review the delegate’s decision and for that purpose has provided the Tribunal with a copy of the primary decision.

5. Mr Francesco Ruffo, a director of the applicant, appeared before the Tribunal on 27 June 2018 to give evidence and present arguments. The hearing was held as a combined hearing with the related Subclass 457 visa refusal of Mr Gurbachan Singh who gave evidence as a witness.  

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 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

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

10. Based on the evidence contained in the Department’s file and specifically the application form, the Tribunal makes the following findings:

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

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

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

    ·The applicant identified in the nomination the proposed applicant for a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b);

    ·The nomination included the location at which the occupation will be carried out being 788 Maffra-Briagolong Road, Boisdale, Victoria and the nominated occupation of Primary Products Inspector ANZSCO Code 311399 since the applicant is a standard business sponsor: r.2.73 (4A).

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

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. The Tribunal finds, based on information provided to it during the review, that the person making the nomination is a standard business sponsor, having being approved on 21 December 2015 for a period of five years, with the period of approval ending 21 December 2020.

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 information provided in the nomination form, the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation.

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. In these cases:

    ·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);

    ·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);

    ·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and

    ·if the Subclass 457 visa holder met cl.457.223 (6), he or she must either: continue to meet cl.457.223 (6); or be an exempt applicant under cl.457.223 (4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72 (10) (g).

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 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.

21. The Tribunal is satisfied that the applicant clearly identified in the application form that it was nominating a ‘Primary Products Inspector’ to work at 788 Maffra-Briagolong Road, Boisdale, Victoria.  The relevant ANZSCO Code 311399 was listed in the application.

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. The Tribunal is satisfied that the applicant certified on the nomination form that it had not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

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 ‘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 18/048, 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 primary products Inspector which is an occupation specified in IMMI 17/060.  The Tribunal is satisfied that the nominated occupation is not subject to any applicability conditions specified in IMMI 17/060.

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

32. 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.

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

    Terms and conditions of employment

34. 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.

35. 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.

36. 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). On the evidence before it, the Tribunal is satisfied that there are no Australian citizens or Australian permanent residents performing equivalent work at the same location.

37. 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: r.2.72 (10) (AB).

38. The amount of earnings currently specified by the instrument is $250,000: r.2.72 (1) (AB). As the nominees earnings are contracted to be $54,105, his annual earnings are not equal to or greater that that specified in IMMI 13/028.

39. The Tribunal has considered the Horticulture Award 2010 which although not directly relevant to the specific occupation of Primary Products Inspector does provide some information relevant to employees in the horticulture industry.  The classification descriptions are contained in Schedule B to the Award.  The Tribunal considers that the tasks undertaken by a primary products Inspector are broadly commensurate with Level 5 in the classification description.  The Tribunal notes that the minimum weekly wage for a Level 5 employee in the horticultural industry is $837 per week.

40. The Tribunal has also consulted the Australian Government’s Job Outlook database and notes that it does not contain any specific reference to the nominated position of Primary Products Inspector.  The Tribunal notes that the Job Outlook database does contain a classification for a Product Quality Controller.  The tasks performed by a person in this position examine manufactured products and primary produce to ensure conformity to specifications and standards of presentation and quality, which is broadly commensurate with the tasks of the Primary Products Inspector.  The Skill level for this position is Certificate II or III and the average weekly wage is $1,149 before tax.

41. Therefore, having regard to the available information and referring to the Horticultural Award 2010, PayScale and Job Outlook, on balance 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.     

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

    Base rate of pay

43. 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.

44. 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.

45. The current TSMIT for the purposes of r.2.72 (1) (cc) is $53,900: IMMI 13/028.

46. 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).

47. Upon considering the matters set out in paragraphs 39 and 40 of this decision and noting that the base rate of pay for the nominee’s annual earnings is proposed to be $54,105, the Tribunal is satisfied that the base rate of pay that is or would be paid to an Australian citizen or Australian permanent resident will be greater that the current TSMIT, as specified in IMMI 13/028.  

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

    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 instrument IMMI 17/060;

    ·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 IMMI 17/060.

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

    Position must be genuine

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

52. In his oral evidence, Mr Ruffo told the Tribunal that the applicant commenced its business in 1989.  It was initially a small family business situated in Bacchus Marsh and operated by him and three other directors and five employees.  Since that time the applicant’s business had grown to be a major vegetable and salad wholesaler, farming approximately 3,500 acres in Bacchus Marsh, Gippsland and the Sunraysia region of Victoria.

53. Mr Ruffo explained that the business supplies fresh produce to large and independent supermarkets across Australia, international export customers in Asia and the wholesale markets in Melbourne, Sydney, Brisbane and Adelaide. The company now employees over 4oo employees in activities such as planting, harvesting, packing, freight and delivery, sales, administration and finance.  The financial documentation provided to the Tribunal by the applicant shows that the annual turnover for the company for the year ending 30 June 2016 2016 was 47,267,738; for the year ending 30 June 2017 was $62,034,268; and for the 10 months to April 2018 was $48,133,418 with an estimated figure for 30 June 2018 of $55,000,000.

54. Mr Ruffo said that although the applicant grows and sells a range of fruit and vegetables, it specialises in producing hand-picked salad mixes and full head lettuces, with several ‘gourmet’ varieties.  The applicant is able to ensure year round supply which is not affected by seasonal variances and offers a service, picking, packing and delivering produce within 24 hours if required by a customer.

55. The Tribunal was provided with an organisational chart for the applicant company, in which the nominee’s position is listed together with general farm worker, a horticultural technical officer, field administration officer, information technologist, and senior farm manager.  The Tribunal is satisfied from this information and the evidence given at the hearing that the applicant operates a large-scale and sophisticated horticultural business which relies on technological skill and innovation to maximise crop production and ensure a consistently high quality product for its customers.  The Tribunal accepts that the nominee’s position is an integral part of the business.

56. The applicant provided the Tribunal with a Position Details document setting out the required tasks of a Primary Products Inspector with the company.  These include the following:

    ·Inspecting plants in the stage of pre-planting to look for quality issues and disease issues (plant health)

    ·Monitoring quality systems and procedures in order to comply with appropriate standards.

    ·Ensuring that hygiene standards are met in all areas including storage and distribution.

    ·Managing and review all application and seeding dates.

    ·Communicating effectively with field technicians and planters in order to be able to obtain relevant and precise information (location, isolation, stage of crop).

    ·Daily monitoring produce for size quality and contamination (purity and cleanliness).

    ·Inspecting crops to be able to determine the condition of crop open paragraphs open arm (maturity and uniformity close bracket for harvest. Inspect crop re-presence of reportable disease.

    ·Inspecting crops regarding general appearance and problems regarding hail insect damage and disease.

    ·Examining products to comply against specification and the grading of each product.

    ·Reporting any health implications of disease and impurities.

    ·Completing crop inspection reports including economic values are to regarding crop disease eradication.

    ·Ensuring that work is compliant with quality assurance and Occupational Health & Safety regulations. Understanding implementing and monitoring policies and procedures relating to the health and safety systems of the company.

    ·Providing recommendations for production system improvements and enhancement. Providing monthly management report to the executive team which includes any abnormalities.

1. After considering the above Position Details document and receiving the evidence of Mr Ruffo and Mr Singh, the Tribunal is satisfied that the nominee’s proposed duties generally reflect those listed in the ANZSCO dictionary.

2. The Tribunal notes that in her decision, the delegate raised the following concerns regarding the genuineness of the nominated position with the applicant:

   “I am not satisfied that the proposed tasks that the nominee will be performing support the conclusion that the nominee is likely to be actually regularly performing the full breadth of duties as defined in ANZSCO of a Primary Products Inspector.

   In particular, I am concerned that it appears the nominee will be undertaking a significant number of non-or less skilled tasks that could be performed by a nonskilled employee. These include inspecting the crop for problems in appearance such as those caused by hail or insect damage, monitoring plants for size and quality, and examining and grading crops against specifications. Based on this it appears the nominee is predominantly occupied with day-to-day low skilled task, rather than providing advice or guidance to producers to enable them to meet health and safety standards as well is ensure product quality.

   In making my assessment, I have taken into account not just a job description provided, but also the business context for this position. I have considered the information provided relating to circumstances leading to the creation of the position, as there is no one currently in this role and the nominee will be overseeing the process from planting to packaging and distribution of fresh produce. However, the applicant has also stated that they are required to meet high food safety standards and are regularly audited in relation to food safety, but have not sufficiently demonstrated how they have been meeting these high standards as required prior to the creation of this position.”

3. When asked about the concerns raised by the delegate, Mr Ruffo explained that the applicant’s quality assurance procedures were not limited to the processing and packaging stage of production.  He said that the company’s procedures commenced with the quality of the seedlings, selected for planting and included the processes of growing, irrigation, fertilization and harvesting.

4. Mr Ruffo told the Tribunal that the nominee was not predominately occupied with day-to-day low skilled tasks as found by the delegate.  He said that the nominee was predominately engaged in providing advice and direction to other employees about the quality of the produce, based on the information provided to him by those employees and making his own decisions about the timing and extent of harvesting, based on an understanding of prevailing weather conditions, in order to assure maximum quality of the produce.

5. Mr Ruffo explained that the company was particularly concerned to ensure required standards of hygiene are observed at all times, in relation to storage, processing and packaging its produce.  The Tribunal notes that the applicant provided the Department with a Safe Quality Food Institute Code for the Food Industry and a Manufacturing Supply Requirements document from one of the applicant’s major customers, a large supermarket chain.  The Tribunal is satisfied from a perusal of this material and the evidence of Mr Ruffo that ensuring food hygiene for its produce is a significant concern of the applicant and that the applicant is involved on a day-to-day basis in providing advice and guidance to other employees to enable the company to meet health and safety standards. 

6. Mr Ruffo told the Tribunal that the nominee had been employed by the applicant for the past five years and had been in his current role of Primary Products Inspector for the last three years.  The applicant also employees another such inspector at one of its other sites.  This employee performs the same tasks as the nominee.

7. The nominee has been working in the nominated position for the past three years and the applicant employees another employee in the same role at a different location.  These factors support a view that the position is genuine.

8. Mr Ruffo described the nominee as an excellent employee who was skilled, punctual and diligent.  He said that Mr Singh was promoted to his current role because of his horticultural skills and ability to perform the nominated occupation.  He also holds a Diploma in Horticulture, conferred in January 2013 by the Australian Institute for Workplace Education and a Certificate IV in Frontline Management, from the Australian College of Trade, dated 30 April 2015.

9. In his oral evidence, Mr Singh confirmed the evidence of Mr Ruffo regarding his role with the applicant.

10. By reason of the above, the Tribunal is satisfied that the current nature of the applicant’s business and its levels of business activity and financial viability together with the qualifications and experience of the nominee, support a finding that the nominee would regularly perform the tasks associated with the ANZSCO Code 311399 definition of the Primary Products Inspector.

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

    Employment under contract

12. 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.  There is no current instrument for the purposes of the regulation.

13. The Tribunal notes that the applicant has provided to the Tribunal a copy of the Contract of Employment signed and dated 25 January 2016, for the nominee, setting out the main terms and conditions of employment.

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

    Work agreements

15. 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.

16. 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

17. 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.

18. 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.

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

20. In this case, the nominated occupation is ‘Primary Products Inspector’ ANZSCO Code 311399.  This occupation is classified as Skill level 2 in the ANZSCO dictionary.  Skill level 2 designated occupations are exempt under IMMI 13/137.  The Tribunal is also satisfied that the nominee holds a Diploma in Horticulture covered by the Australian Qualifications Framework; he meets the requirements of s.140GBC (3) (a) and (b) of the Act.  Therefore evidence of labour market testing is not required.

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

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

    DECISION

23. 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)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.

    (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.