1414487 (Migration)

[2015] AATA 3833

1414487 (Migration) [2015] AATA 3833 (7 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ausman Cuts

CASE NUMBER:  1414487

DIBP REFERENCE(S):  BCC2014/1181848

MEMBER:Denise Connolly

DATE:7 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 07 December 2015 at 3:36pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by the delegate of the Minister for Immigration on 20 August 2014 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 12 May 2014. 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 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)(f) because the delegate was not satisfied the applicant had demonstrated the position is necessary to the operations of the business.

4. Mr Jamal Osman, on behalf of the applicant, appeared before the Tribunal on 1 April 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Mohammad Shatnawi.

5. This matter was previously constituted to another Tribunal member who heard the applicant’s evidence at the hearing on 1 April 2015. This Tribunal member has listened carefully to the recording of that hearing. The applicant was given further time to provide evidence in relation to concerns raised by the evidence. The Tribunal also wrote to the applicant advising that the matter had been reconstituted. This Tribunal is satisfied that all of the relevant issues were raised at the hearing and the applicant has been given a reasonable period after the hearing to provide further evidence addressing the issues of concern raised at the hearing. Accordingly this Tribunal is of the view it is appropriate to proceed to make its decision on the evidence before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. Information provided with the application states that the applicant is a hairdressing and beauty salon based in Lee Street, Central Station, Sydney. When making the nomination application the applicant stated that the business needed a Hair or Beauty Salon Manager. An organisational chart was provided showing Mr Jamal Osman is the Director/Owner of the business, Mohammad Shatnawi (the nominee) is the manager, and the business employs beauticians/hairdressers although there were no particulars provided as to the numbers of employees or their names. The applicant claimed to have undertaken labour market testing a few months before lodging the application. The advertisement provided indicates the applicant sought a person with previous management experience, preferably a formal qualification, hairdressing and wet shaving experience and at least 2 years’ experience in administration. The applicant claimed the nominee would be paid a salary of $49,315.

9. The information provided about the position description indicates in summary that it will manage and lead a team, attend to calls, follow the appointment system, provide information on prices and services, monitor and carry out marketing and promotions, manage rosters and timesheets, manage customer complaints procedures and processes, network, monitor stock and maximise sales, coach, show leadership, and ensure cleanliness and OH&S compliance. Other documentation provided indicates the position will manage and support staff and will be responsible for further recruitment, and that the role of the Salon Manager includes responsibilities for determining product mix and services standards, formulating and implementing marketing policies, recruiting training and supervising staff, as suggested in the material provided with the application, consistent with the ANZSCO description for a Retail Manager.

10. The delegate’s decision record, provided to the Tribunal by the applicant, records that the applicant provided a statement that the business is currently managed by the Director who is having difficulty because he is involved in various other businesses. The delegate records that no supporting evidence was provided to demonstrate this claim. He also noted that the organisational chart indicates that the Director/Owner of the business is already in the position of Salon Manager. He recorded that the applicant had emailed the Department that the business urgently needed a full-time hairdresser and asked that the Department accelerate the processing of this application. The delegate noted this suggested that the position was in fact that of a hairdresser, not a Hair or Salon Manager. The delegate formed the view that there was not a genuine need for the position and therefore r.2.72(10)(f) was not met.

11. When inviting the applicant to the hearing the Tribunal requested that financial documentation be provided, including bank statements, BAS statements, PAYG payment summaries and financial reports. The applicant provided BAS for the last 2 quarters of 2014 indicating quarterly sales of $46,970 (PAYG tax withheld $546) and $44,080 (PAYG tax withheld $468). The financial statement for the 2013/14 financial year indicates salary expenditure of $12,072 and a net profit of $31,948. A PAYG payment summary indicates the salary was paid to the nominee. No other PAYG payment summaries were provided.  A bank statement provided indicates the business held a balance of $5,845 as at 7 March 2015.

12. At the hearing the Tribunal discussed with the applicant the requirements of r.2.72 and the operations of the business. The Tribunal focused in particular on two concerns: whether the position associated with the nominated occupation is genuine; and whether the applicant has sufficient resources to pay the rate of pay stated in the employment agreement.

13. The applicant indicated to the Tribunal that the business has two shops, one at Central and another at Broadway. He told the Tribunal that there are 3 chairs in each barber shop. There are 3 contractors (Sadiq, Mosich Ali and Avril) and Mr Shatnawi, the nominee, working in the shops, along with Mr Osman, the owner. He does not have any other employees apart from the nominee. He wants the nominee to work as a hairdresser/manager. The Tribunal asked why the application referred to a Salon Manager if it is the case he wants the nominee to work as a hairdresser. The applicant acknowledged that he wants the nominee to work as a hairdresser as well as manage the salon and some confusion led to the nomination of the Salon Manager position. The nominee is currently working part-time 20 hours per week and has been doing this for 16 months. The applicant said he is currently being paid $505 per week, about $20,000 a year. He will be paid $54,000 per annum for salary and superannuation if the position is approved. The Tribunal explained that this salary package may not be sufficient as the base salary needs to exceed the threshold. The applicant indicated he will pay whatever is needed.

14. The applicant explained that the business rents barber chairs to the contractors. It gets $300 per week per chair for 2 chairs at Central. Mr Osman uses the third chair at Central. He also rents out a chair and a small room to Avril, Hair and Beauty beautician for $700 per week. He and the nominee work at the Broadway store. He does not rent out chairs at that store. He earns $7800 per quarter from chair rental.

15. The Tribunal noted its concern that the applicant has no other employees apart from the nominee and questioned the need for a Salon Manager position. The applicant said that he had previously had an apprentice but they do not last. He said because his shop is located near Immigration people get scared to work for him. He indicated people don’t want to work on tax so he is struggling to find employees.

16. The Tribunal noted the applicant had provided bank statements. It asked where the business deposits the sales revenue and the chair rental as these amounts were not reflected in the bank statements provided. The applicant indicated he receives the money in cash and he then deposits it all into the business’ bank account. The Tribunal noticed there was a $15,000 deposit and asked about its source. The applicant said the money was a guarantee for a lease, repaid to him. The Tribunal noted that the amounts going into the accounts for the period 1 July 2014 to 30 December 2014 the deposits, minus the $15,000, were only $40,000. However the BAS for the period indicate that he had sales of $92,000. The Tribunal questioned why less than half the monies from sales was going into the bank account and asked where the other $50,000 went. The applicant indicated that for 4 months he paid the rent in cash. He paid rent of about $5500 per month for Broadway. The Tribunal asked where the cash was kept between receiving it and paying the rent. The applicant indicated he did not have time to go to the bank. The Tribunal noted that cash deposits appear to be made every few days. The Tribunal raised its concern regarding the inconsistent evidence about the business’ finances. It questioned where the other $20,000 in cash went. The applicant indicated his wife paid the mortgage on their home.

17. The applicant said the rent for the Central shop was $2918 per month which is paid by bank transfer. It is a smaller shop. He opened the first shop at Central on 5 May 2010 and the second shop at Broadway on 11 November 2013.

18. The Tribunal asked the applicant how the base salary for the position was negotiated. He indicated that if he has the position he can increase the business and sales. The Tribunal asked how he calculated the correct amount for the position. He said he decided to pay this amount so he could increase his sales and own wage. He has not had an employee before the nominee. He draws about $30,000 for himself from the business. This is after he pays his mortgage. He thinks if he employs someone he can increase his own wage by $10,000. He thinks his current turnover is about $90,000 per quarter or, over a year, between $200,000 and $300,000. The Tribunal noted that during the 2014 financial year, the financial reports indicate a total income of only $123,000 and for about half that time the second store was operating, and the BAS for July to December 2014 record total sales of about $100,000. The Tribunal raised its concern that the business cannot afford to pay the base salary proposed. It noted the business is currently not paying wages and that in 2014 it only paid $12,000 in wages and currently is paying the nominee only about $500 per week. The Tribunal noted the business intends to pay another $30,000 per year in wages but the financial evidence does not indicate the business can afford this. The applicant referred to the $50,000 missing from the bank statements. He said he pays GST of about $3000 every quarter, plus the rent. The Tribunal indicated it may not be satisfied the business can afford to pay the position $55,000. The applicant indicated the position will increase the work and sales and he will not have to travel between the two shops if he has the position. He will be based in just one shop and he will be able to work hard.  

19. The Tribunal asked about the role of the position and the business’ needs. The applicant said that he needs to increase his staff and he wants to be able to open another shop and employ more people. The position will be based in Central working with the 2 contractors who rent the chairs and will manage those relationships. The Tribunal asked why he did not simply rent out another chair. He said he would like to but it is hard to get barbers in Sydney. He advertised for this job in Gumtree, and put an ad in the window. He said he had only one or two applications. However he needs someone who can do a good haircut. The nominee approached him from the ad in the window.

20. The Tribunal spoke with the nominee. He said that he manages the store, handles the cash, goes to the bank and cleans the store. He works 20 hours per week at Central and earns about $500 per week. He learned to be a barber in his home country.  He understands the position will involve full-time work, looking after the store, cutting hair, shaving and cleaning the store. He understands he will be paid $54,500.

21. The Tribunal raised with the applicant the concern that the position required by the business is that of a hairdresser and not a Salon Manager. It asked for the applicant’s submissions on why it should be satisfied the business needs a manager. The applicant said he is not in the Central shop to do the job. He said the contractors working there only worry about their own chairs. There is no-one there to do the managing. The Tribunal asked the applicant if the nominee currently tells the contractors what to do, and if he manages them. The applicant indicated he tells the contractors how to speak to customers and give a good service. He also talks to them about prices for haircuts.  He acknowledged however that he is not currently managing the people renting the chairs. The Tribunal questioned why this situation would change. He indicated that if he gets the position he will meet with the contractors and will introduce the nominee as the new manager.

22. The Tribunal raised the concern that the Central shop might not provide a broad range of services such that it needs a Salon Manager. It was suggested that, as a barber service, there may not be a sufficient range of services to warrant the position. The applicant said the salon does colouring and provides for pensioners. He said there are 3 or 4 female pensioners coming in each day. The business does some hair washing each day. It also provides shaving services.

23. The Tribunal invited the applicant to make any other submissions about why the position of Salon Manager is needed. The applicant said that he wants the position as soon as possible because he needs someone in the Central shop. He wants to increase his business. He will be able to get another contractor to help him with any increase in the business. He has used backpackers but they are not reliable. He also wants another worker or contractor for Broadway.

24. The Tribunal noted that it remained concerned that the business is not in a position to pay the position $54,000. The applicant submitted that while he is only now paying the nominee $12,000, when the nominee starts working full-time, he will make the business enough money to pay him $54,500 a year.  The Tribunal noted that the applicant had in his oral evidence indicated he was paying the nominee $20,000 and questioned why he is now saying he pays the nominee $12,000 per year. The applicant indicated he had made a mistake and said he was now paying him more than $12,000. The Tribunal asked why it should be satisfied the business really will pay the nominee this amount. The applicant indicated that he was planning to do this as the position would enable him to increase sales.

25. The Tribunal told the applicant it would write to him after the hearing in relation to the issue of whether the business could pay the base salary and superannuation as has been claimed.

26. After the hearing the Tribunal wrote to the applicant on 7 April 2015 noting that the evidence provided raised concerns as to whether the applicant would meet r.2.72(10)(cc) as the base salary must be at least the temporary skilled migration income threshold. The applicant provided a new employment agreement indicating the nominee would be paid a base salary of $53,900. The Tribunal wrote to the applicant again on 14 May 2015 advising that the base salary needed to exceed the threshold. The Tribunal also noted the applicant’s approval as a standard business sponsor had ceased.

27. A new employment agreement was provided, signed on 19 May 2015, indicating a salary of $55,000 plus superannuation. The applicant also provided evidence that it had made an application for approval as a standard business sponsor.

28. On 20 July 2015 the Tribunal wrote to the applicant to advise that the matter had been reconstituted to a different member.

29. On 16 October 2015 the applicant provided evidence that the business had been approved as a standard business sponsor for the period 16 October 2015 to 16 October 2020.

    Position must be genuine

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

31. Having considered the written and oral evidence provided the Tribunal finds that the business is a hairdressing and beauty business with two outlets, one at Central and another at Broadway. Mr Osman, the owner and director, has been working at both outlets since he purchased the second shop at Broadway in November 2013. He rents out chairs to two contractors at the Central shop, a small space to a beautician, Avril and he and the nominee work at the Broadway store.

32. In the written material provided with the nomination application the applicant has submitted that he needs the position to undertake several salon management duties, including managing and leading a team, managing rosters and timesheets, providing information on prices and services, monitoring and carrying out marketing and promotions, coaching and showing leadership, and ensuring cleanliness and OH&S compliance. Having considered the oral evidence about the need for the position, the Tribunal is not satisfied the business needs the position to perform the duties set out in the written material provided with the application. The Tribunal is not satisfied there is a team to lead and manage. The other workers at the Central shop are contractors. The information provided does not indicate that the two contractors who rent the chairs at Central work as a team under the management of the business owner or the nominee.  On the basis of the oral evidence the Tribunal is of the view the nominee will be, in the main, working as a hairdresser at the Central shop. The position may provide some information about prices and services and it may ensure cleanliness and OH&S compliance. There may be some banking every few days. However the Tribunal is of the view it is a relatively small salon, with 3 chairs, and these duties will not require significant time.

33. The Tribunal is also of the view that the relationships with those contractors renting chairs will essentially be managed by the business owner/director. It is not satisfied that those relationships will take up significant time in this case. Also the applicant indicated that he needs the position because it will enable the business to generate more income. In this case, the applicant has no other employees and the Tribunal is of the view that the only way the position could generate more income is if it is spending a significant period actually providing hairdressing and shaving services. The Tribunal is satisfied that, while the applicant has indicated he wants to grow the business in the future, given the current size and nature of this business, the owner/director is able to undertake the duties of the salon manager for both stores. It is of the view that in order to meet its goal to achieve higher sales the business needs a hairdresser/barber; not a salon manager.

1. The Tribunal is not satisfied that the occupation Hair or Beauty Salon Manager is a suitable occupation to describe the position required in the business. It does not accept that the position includes the range and type of duties at the requisite skill level to be properly described as a Hair or Beauty Salon Manager.  The Tribunal is not satisfied that the role includes significant responsibilities for determining product mix and services standards, formulating and implementing marketing policies, recruiting training and supervising staff, as suggested in the material provided with the application. The Tribunal considers that the position’s main duties are essentially hairdressing and shaving rather than managerial. 

2. For the reasons given, while it accepts the applicant needs an employee to provide hairdressing services, the Tribunal is not satisfied that the position associated with the nominated occupation of Hair or Beauty Salon Manager is genuine in this case. Accordingly the requirements of r.2.72(10)(f) are not met.

3. The Tribunal also discussed with the applicant, given the financial evidence, its concern that the business may not be able to pay the salary proposed. However as the applicant has not met a mandatory requirement for the approval of the nomination it is unnecessary for the Tribunal to make findings about the business’ capacity to pay the salary proposed.

4. 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

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

   Denise Connolly
   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.