1509433 (Migration)

[2016] AATA 4534

1509433 (Migration) [2016] AATA 4534 (18 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  247 LABOUR CREW PTY LTD

CASE NUMBER:  1509433

DIBP REFERENCE(S):  BCC2015/1671873

MEMBER:Catherine Carney-Orsborn

DATE:18 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2016 at 1:27pm

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 23 June 2015 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 11 June 2015. 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 2.72(10)(f) because the delegate was not satisfied the job description closely resembled the ANZSCO description of the same occupation. He was not satisfied the nominated position was genuine.

4. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The applicant was represented in relation to the review by its registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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).

2. The applicant’s business is described as a Third Party Logistics (3PL) provider of furniture transportation and furnishing service with focus on high-end furniture logistics, transport, warehousing and furnishing located in New South Wales, Victoria and Queensland.  Their NSW warehouse/depot is over 2500 square metres and has a fleet of 10 vehicles. Their clients include prestigious furniture brands, magazines, stylists and designers.  The applicant provided a list of customers/clients. The applicant works with an associated company which is Designer Transport Pty Ltd.  This arm of this business is focused on the sales and marketing arm of the business.  Organisation charts were provided.

3. The applicant provided copies of BAS statements.  The latest statement dated 1 April 2016 to 30 June 2016 showed the applicant/company had total sales of $1,472,306.  

4. At the time of application the applicant provided a copy of an employment agreement between the applicant and the nominee, Mr John Weston stating that a salary of $56,160 (plus superannuation) would be paid for his work in the nominated position, being Customer Service Manager for New South Wales.  An employment agreement with a previous customer service manager who had resigned from the company was included to show that the position was a genuine position and contained the same provisions.

5. The job description provided with the application sets out some broad responsibilities for the position.

6. Prior to the hearing the applicant provided further documentary evidence including.

   a.Genuine Position Statement

   b.Position description

   c.Organisation chart

   d.Customer list

   e.Employee List

   f.Financial report – 247 Labour Crew Pty Ltd

   g.Financial report – Designer Transport Pty Ltd

   h.New contract with Coco Republic

   i.Booking policy

   j.Booking system

   k.Environment policy

   l.Driver monitor system

   m.Reporting system

   n.Example of customers request and their service

   o.Operational procedures

   p.Operation forms x 2

   q.Transport and logistics industry report

   r.Job outlook job prospect

7. At the hearing the applicant provided copies of BAS statements from July 2015 to June 2016, showing a total turnover for the two associated companies of $7,709.108.00.

8. The applicant provided oral evidence at the hearing.  He explained the size of the company and went in detail through the business model.  He said that the business has branches in NSW, Victoria and Queensland.  There are 65 employees as well as sub-contractors who are not listed.

9. He explained that the business is expanding.  He stated with the application he had a different agent.  He feels that not enough information was provided to the Department and that was the reason for the refusal.

10. He went through the duties that are expected of a customer service manager.  He said that the nominee has been in a role with the company for three years.  He explained that customer service was extremely important as his business caters for the high end of the market.  He explained that they also do interior design and property styling. 

11. He went on to explain that his point of difference in his market is that they not only transport the furniture they then install the furniture and goods in a manner  which the client wants and which is recommended by client.

12. As the goods are high-end the customers are demanding and expect a VIP service.

13. He said they are also involved in on site design and interior fit outs.  He said that they have a project manager to oversee this.

14. He explained that due to the business at times there may be a scratch or some damage to the goods.  He needs someone who has good people skills to be able to deal with the situation and negotiate with the clients and customers so that both are satisfied with the service. 

15. The applicant said they found the nominee as he started at the company doing trucking jobs.  He has the right skills and personality to be able to listen to any complaints which can be abusive and to try to placate customers and come up with a solution.  He said that as the company is growing issues are coming up almost daily.  He said that the nominee has implemented pre and post inspection reports and other policy to try to ensure a proper job is done.

16. The applicant described the complexity of the demands on the position. It is a very dynamic position, constantly dealing with client demands and business issues. The nominee deals with some clients directly and with others through other staff, depending on the relationship. The nominee manages the competing demands in a large dynamic business.

17. The nominee also supervises the front desk to make sure staff are dealing with clients appropriately. Issues are escalated to the nominee when they cannot be resolved by junior staff.

18. He supervises full-time and casual workers and spends hours every week improving procedures to make the facility work more efficiently.

The nomination must comply with the prescribed process

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

2. The applicant is nominating the occupation of Customer Service Manager, ANZSCO 149212, which is an occupation under s.140GB(1)(b): r.2.73(1A)(a). The applicant has identified in the nomination Mr John Weston, a proposed applicant for a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b). The Department’s records confirm that the nomination was made online using the approved form 1196 (internet) and the prescribed fee has been paid; r.2.73(2), (3), (5) & (9). The applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5). The nomination includes the location, Rosebery, NSW, 2018, at which the occupation will be carried out, and the name and 6 digit ANZSCO code: r.2.73(4)/(4A).

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

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

1. 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.

2. Information before the Tribunal indicates that the applicant was approved as a standard business sponsor for a three year period commencing 6/12/2014. That sponsorship remains in force and the Tribunal is satisfied that the applicant, at the time of this decision, is a standard business sponsor.

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

Identification of the nominee

1. 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.

2. On the basis of information on the nomination application the Tribunal is satisfied that the applicant has identified Mr John Weston as the person to undertake the nominated occupation and that Mr Weston is a proposed subclass 457 visa applicant.

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

Requirements for existing Subclass 457 visa holders

1. 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.

2. 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

1. 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;

   ·the location(s) at which the nominated occupation is to be carried out.

2. On the basis of information provided in the application, the Tribunal is satisfied that the applicant provided the relevant 6 digit ANZSCO code and specified the location for the position at which the nominated occupation is to be carried out.

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

No adverse information known to Immigration

1. 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.

2. There is no adverse information of the type described above known to the Department about either the applicant or an ‘associated person’.

3. Given the above, the Tribunal finds that the requirements of r.2.72(9) are met.

Specified occupation

1. 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 15/092. 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).

2. The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation of Customer Service Manager and corresponding code 149212 appear on the relevant list in the relevant instrument. The instrument does not require the nomination to be supported in writing by a specified organisation.

3. For these reasons, the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.

Terms and conditions of employment

1. 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.

2. 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.

3. 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).

4. 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, $250,000: r.2.72(10)(AB).

5. The employment agreement, which sets out the terms and conditions of employment, indicates that the nominee’s annual salary will be $56,160 plus superannuation.

6. The organisational chart provided indicates that the applicant employs one Customer Service Manager in NSW and that the nominee currently occupies that position.   The applicant provided an employment agreement for the person who previously occupied the position.  Previous payslips relating to the previous customer service manager were supplied they indicate that his annual salary was $56,160.  

7. The Tribunal has had regard to the terms and conditions of employment, as set out in the employment agreement, and is satisfied that the terms and conditions of employment for the nominee are no less favourable than those which had been provided to an Australian performing equivalent work in the same workplace.

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

Base rate of pay

1. 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 which is currently $53,900.

2. 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.

3. 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).

4. The nominee’s annual earnings will be at least $56,160. As this amount exceeds the TSMIT, which is currently specified as $53,900, the Tribunal is satisfied that the requirements of r.2.72(10)(cc) are met.

Certification under r.2.72(10)(e)

1. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e).

2. The certification relates to the tasks of the position, the nominated occupation and the skills and qualifications of the visa holder, or proposed visa holder.

3. The applicant has made the relevant certifications in the nomination application, and on this basis the Tribunal is satisfied that the requirements of r.2.72(10)(e) are met.

Position must be genuine

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

2. The Tribunal has considered the substantial amount of evidence provided to it by the applicant.

3. The Tribunal held a hearing and tested the applicant’s evidence against the documentary evidence.  The Tribunal is satisfied due to the independent evidence provided including BAS statements and other financial statements that the applicant is a busy and expanding business.  The business activities of the two associated companies had a turnover of $7,709,108.00.

4. The Tribunal is satisfied that the nature of the business, being high end furniture removal placement and styling is demanding.  The Tribunal was provided with a copy of the applicant’s clientele and is satisfied that they are providing services customers who expect a VIP service.  The Tribunal is further satisfied that due to the nature of the work there will be substantial issues with client satisfaction and expectations. 

5. The Tribunal heard that the customers expect that the furniture they purchase should be placed and stylised as they purchased it in the showroom.  The Tribunal is further satisfied that the company also assists with styling and interior design for magazines and other design activities. 

6. The Tribunal has considered the job description as given by the applicant at hearing and in the documents provided.   The Tribunal is satisfied that the tasks described and outlined are consistent with the tasks included in the occupation Customer Service Manager as described in ANZSCO.  The Tribunal is satisfied that given the nature of the business it is essential that there is a person who can deal effectively with any complaints.  Tribunal is satisfied the position will develop and review policies and procedures concerning customer relations and services provided, provide direction and feedback to employees, assist with recruitment, manage, monitor and motivate staff, follow up on complaints and customer satisfaction, liaise with clients and ensure their needs are met promptly.

7. The Tribunal is accordingly satisfied that the position associated with the nominated occupation of Customer Service Manager is genuine.

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

Employment under contract

1. 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 an instrument. There is no current instrument for the purposes of this regulation. 

2. A copy of an employment agreement which set out the terms and conditions of employment was provided to the Tribunal. The Tribunal is accordingly satisfied that the requirements of r.2.72(10)(h) are met.

Work agreements

1. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.

Labour Market Testing

1. 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.

2. In this case, the nominated occupation is Customer Service Manager, ANZSCO 149212. This occupation is classified as Skill Level 2 in the ANZSCO dictionary. All occupations which are classified in the ANZSCO as Skill Level 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(b):IMMI 13/137. In the circumstances, the skill and occupation exemption to the labour market testing requirements in s.140GBC(3) are met and the applicant is exempt from having to satisfy the requirement in s.140GBA.

3. For these reasons the requirements of s.140GBA are not applicable.

Conclusion

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

DECISION

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

Catherine Carney-Orsborn
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.

(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.