1316758 (Migration)

[2015] AATA 3782

1316758 (Migration) [2015] AATA 3782 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  VNT Engineering Pty Ltd

CASE NUMBER:  1316758

DIBP REFERENCE(S):  ASB2013/7818 BCC2013/526911 Bcc2013/939555

MEMBER:Miriam Holmes

DATE:1 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 01 December 2015 at 2:28pm

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 25 October 2013 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 is a proprietary company, limited by shares. The applicant applied for approval on 28 June 2013. 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. It applied for approval identifying Mr Paresh Desai as the nominee for the position of Marketing Specialist, ANZSCO 225113. 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 visa 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)(c) or (cc) because the delegate was not satisfied that the terms and conditions of the nominee will be no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident for performing equivalent work at the same location and that the base rate payable to an Australian citizen would greater than the temporary skilled migration income threshold of $53,900. The delegate reached this conclusion based on the applicant not having Australian citizens or permanent residents performing equivalent work at the same location at the time of the application.

4. The Mr Junwei Xu attended the hearing on behalf of the applicant and appeared at the hearing before the Tribunal on 28 October 2014 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Paresh Desai (the proposed nominee). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

7. In this case the delegate was not satisfied that the applicant met the requirements in r.2.72(10)(c) or r.2.72(10)(cc). The Tribunal considered these two particular requirements.

   Terms and conditions of employment

8. 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.

9. 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.

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

11. 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, being $250,000: r.2.72(10)(AB). The Tribunal finds that the annual earnings of the nominee do not exceed $250,000, therefore this exemption does not apply.

12. When the nomination application was first considered by the delegate there were no Australian citizens or permanent residents performing equivalent work at the same location, and therefore the delegate considered the requirements of the relevant instrument. However after the review application was lodged, Mr Xu gave evidence that at the time of consideration by the Tribunal there was an Australian citizen employee performing equivalent work at the same location. Mr Xu produced one payslip as evidence that there was another Australian employee performing equivalent work at the same location. Therefore the Tribunal considered whether this requirement was met taking into account the new information available.

13. When the nomination application was lodged the applicant stated there were no other Australian citizen employees performing the same work. The applicant stated in the nomination application that the nominee was paid a base rate of $52,500 and had guaranteed earnings of $52,500 and he was paid fortnightly.  After the Department requested more information, the applicant provided an advertisement  and a letter dated 28 June 2013 explaining the applicant had looked at other advertised jobs and noted that as the nominated position requires some sales experience and some business management skill the applicant believes the terms for an Australian in the nominated position should be $52,000 plus superannuation and other fixed monthly benefits of car allowance of $150 per  month and mobile phone allowance of $50 -$80 per month. It noted the total market salary guaranteed package world be $54,400. The applicant also provided a letter dated 28 June 2013 to Mr Desai stating that over and above the basic salary of $52,500 plus superannuation he would receive a car allowance of $100 per month and mobile phone usage of $50 per month.

14. Prior to the hearing the Tribunal received a contract of employment between the applicant and the nominee. The employment contract provided for Mr Desai to the Tribunal and dated 24 June 2013 stated that Mr Desai’s remuneration was $52,500 gross plus superannuation. The contract made no reference to any specific allowances being payable, although does refer to the payment of expenses in clause 11.  The Tribunal also received payslips for Mr Desai showing that Mr Desai was paid a basic fortnightly salary of $2,019.23 plus car allowance of $50 per fortnight and a phone allowance of $25 per fortnight and a variable commission. The amount of $52,500 for the nominee’s base rate of pay and guaranteed earnings as set out in the nomination does not appear  to have included any allowances.

15. At the hearing, Mr Xu stated that Mr Desai and Mr William (the new employee) are paid a similar salary, although Mr Desai is paid an additional $19.23 per fortnight because he has more experience and qualifications. Mr Xu stated that they both receive over $100,000 in remuneration per year, once the car and phone allowances and commissions are taken into account.   

16. At the hearing Mr Xu gave oral evidence about the employment of a new person. Mr Xu stated that he now employs 2 marketing and sales officers, Mr Desai and Mr Mark William. Mr William is an Australian citizen.  He stated that they both have responsibility for marketing and sales to wholesale customers and to builders. Mr Xu stated that Mr Desai is responsible for marketing and sales to wholesale customer’s and large building construction companies whilst Mr M William is responsible for marketing and sales to wholesale customers and to medium sized and smaller residential builders. Mr Desai gave similar evidence to the Tribunal. They are both employed in Melbourne, Victoria.

17. The Tribunal had some reservations about the employment of Mr William, an Australian citizen, as at the hearing the only documentary evidence produced was one payslip. There were no other records such as the employee’s employment declaration form, employment contract or job advertisements for the new position or any other corroborative material to establish the existence of a second employee. The Tribunal noted that in order to compare the terms and conditions the Tribunal needed the employment contract between the applicant and Mr William.

18. After the hearing the Tribunal received a contract of employment with Mr William dated 1 August 2014. The contract was in almost identical terms to the contract provided for Mr Desai at the review stage – save for clause 2 re commencement, the reference in Mr Desai’s competencies to include “a completed university degree preferably in marketing” and the inclusion of a telephone allowance and car allowance for Mr William. 

19. The Tribunal finds, based on the oral evidence of Mr Xu and the employment contract, that as at the date of hearing that Mr William was employed was full time paid $52,000 per annum and paid an annual telephone allowance of $600, and paid an annual car allowance of $1200. The Tribunal finds, based on the oral evidence of Mr Xu and Mr Desai and the contract and letter dated 28 June 2013 that as at the date of hearing that Mr Desai was employed full time and paid $52,500 per annum basic salary plus a telephone allowance of $50 per month, and a car allowance of $100 per month. Both Mr William and Mr Xu also had a car each and were paid commissions, being 4% of any sales (not including GST). The Tribunal calculated that the basic rate of remuneration payable to Mr Desai was $52,500 and the basic remuneration payable to Mr William was $52,000. 

20. The Tribunal has not included any commissions in the calculations as commissions are not “earnings” as defined in r.2.57A.

21. If the allowances are included in the calculations as earnings, the Tribunal finds that Mr Desai’s earnings are $54,300 ($52,500 plus $1800) and Mr William’s earnings are $53,800 ($52,000 plus $1800). The Tribunal has included the allowances as these payments are defined under the terms of the contractual arrangements.

22. At the hearing the Tribunal discussed the requirement of r.2.72(10)(cc). As a result of those discussions Mr Xu requested additional time to provide further evidence regarding the remuneration for Mr William and Mr Desai as he considered whether to revise the components of the salary package, particularly the base rate of pay and commission. Mr Xu stated that Mr Desai was integral to his business and he wished to retain his services as his employee.

23. After the hearing, the Tribunal did not receive any information that the applicant had revised the remuneration of Mr William or Mr Desai.

24. The Tribunal finds that Mr Desai’s terms and conditions are no less favourable than those for the Australian citizen performing the equivalent work at the same location. The Tribunal is satisfied on the evidence available that there is no substantial contrary evidence that the first set is not less favourable than the other set.

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

    Base rate of pay

26. 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. The TSMIT applicable in this case is $53,900.

27. 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 and is described above.

28. 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 which sets the amount at $250,000: r.2.72(10AB). The Tribunal finds that the annual earnings of the nominee do not exceed $250,000, therefore this exemption does not apply in this case.

29. In this case, the Tribunal finds that as at the date of hearing  the nominee’s basic rate of pay is $52,500 and that his annual earnings were $54,300  (including the telephone and car allowance of $1800 per year – see letter dated 28 June 2013)). In calculating the annual earnings the Tribunal cannot take into account the commissions (see r.2.57A (2) and accompanying note), but could take into account the telephone and car allowances as the Tribunal did not consider these to be reimbursements. The telephone and car allowances were set amounts payable each month as set out in the letter dated 28 June 2013 by the applicant. These amounts, whilst they were to cover petrol, parking, phone usage, were not direct reimbursements to cover exact costs.

30. In this case, the Tribunal finds that as at the date of hearing the Australian citizen’s basic rate of pay is $52,000 and that his annual earnings were $53,800 (including the telephone and car allowance of $1800 per year as set out in the contract). In calculating the annual earnings the Tribunal cannot take into account the commissions (see r.2.57A (2) and accompanying note), but could take into account the telephone and car allowances as the Tribunal did not consider these to be reimbursements. The Tribunal finds as at the date of hearing the Australian citizen’s base rate of pay was less than the TSMIT of $53,900.

31. The Tribunal considered whether the exemption in r.2.72(10A) applied. The wording of r.2.72(10A) is ambiguous, in that it is not clear whether the decision maker must consider if it is nominee’s or the Australian citizen’s base rate of pay and annual earnings that must be considered in deciding whether the exemption in (10A) applies. The policy set out in PAM3 indicates that the decision maker must look at the nominee’s base rate of pay and earnings; however the Explanatory Memorandum for the regulation does not indicate that the nominee’s base rate of pay and earnings are to be considered in applying this paragraph.

32. The Tribunal considered that as r.2.72(10)(cc) is in respect of the Australian citizen’s terms and conditions that the Tribunal should consider the Australian citizen’s terms and conditions in assessing whether r.2.72(10A) is satisfied. The Tribunal finds that Mr William’s base rate of pay is below the TSMIT however his annual earnings are not equal to or greater than the TSMIT and therefore the exemption in (10A) does not apply. Therefore the applicant does not meet the r.2.72(10)(cc).

33. In the alternative, if the Tribunal is incorrect in its interpretation above, and the Tribunal is required to consider the nominee’s terms and conditions the Tribunal finds that the nominee’s base rate of pay will not be greater than the TSMIT, although the nominee’s annual earnings are greater than the TSMIT, however the Tribunal does not consider it reasonable to disregard the criterion in paragraph (10)(cc).

34. At the hearing Mr Xu submitted that it was reasonable to disregard the requirement because Mr Desai was integral to his business. Mr Desai had built up clients and was managing major ongoing projects with large commercial builders that need to be managed and Mr Desai was required to undertake this work. Further Mr Xu stated that in reality he was paying Mr Desai and Mr William substantially more than the TSMIT once the commissions were taken into account and they had use of a car. Mr Xu stated that he was unable to find a person who had Mr Desai’s qualifications and experience and it was important to retain Mr Desai. He stated that Mr William had less experience and did not hold the qualifications of Mr Desai and that was why he was paid less than Mr Desai. 

35. The policy set out in PAM3 states:

    Given the purpose of the TSMIT is to maximise the likelihood that the visa holder can independently provide for themselves in Australia, it may not be reasonable to consider additional earnings to the extent to which those earnings are not directed toward the cost of living expenses.

    Conversely, it may be reasonable to take into account additional earnings in circumstances where if the income of the person is greater than it would otherwise be if their remuneration was structured in such a way that the base rate of pay was greater than the TSMIT.

36. The Tribunal did not consider it is reasonable to disregard the criterion in r.2.72(10)(cc) as the additional allowances payable to Mr Desai are directed to meeting costs incurred by the nominee in the performance of his position and do not give the nominee additional income to meet his living expenses. Further, the Tribunal took into consideration that the equivalent Australian citizen’s earnings are less than the TSMIT despite performing the equivalent position, and that the nominee and equivalent Australian citizen are paid guaranteed earnings substantially less than other Australian advertising and marketing employees who are paid earnings on average $64,740 earnings per annum as noted in Job Outlook (see gov.au) at the time of hearing.

37. For these reasons, the Tribunal is not satisfied that the requirements of r.2.72(10)(cc) are met.

38. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Miriam Holmes
    Senior Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)       there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)      the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)     if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)      if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)     unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)       the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)       the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

    (ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.