1515453 (Migration)

[2016] AATA 4353

1515453 (Migration) [2016] AATA 4353 (9 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  1847 Winery (SA) Pty Ltd

CASE NUMBER:  1515453

DIBP REFERENCE(S):  BCC2015/2188380

MEMBER:Christopher Smolicz

DATE:9 September 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 09 September 2016 at 4:20pm

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 26 October 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. On 30 July 2015 1847 Winery (SA) Pty Ltd (the applicant) applied for approval of the occupation of Customer Service Manager (ANZSCO 149212). Miss Dandan Shan was the nominee visa applicant.

3. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72(10)(f) because the delegate found that the position associated with the nominated occupation was not genuine.  In a separate decision the delegate also refused the visa applicant’s subclass 457 visa application because the nomination was not approved: cl.457.223(4)(a)(ii).[1]

   [1] AAT MRD file reference 1605160.

5. The applicant and Miss Shan applied to this Tribunal to review the delegate’s decisions.

6. The Tribunal conducted a combined hearing in relation to both files. Mr Marc Davies, Chief Executive Officer of 1847 Winery (SA) Pty Ltd and Miss Shan appeared before the Tribunal to give evidence and present arguments on 27 July 2016.

7. The applicant was represented in relation to the review by its registered migration agent.

8. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   Tribunal hearing

9. 1847 Winery (SA) Pty Ltd first registered in Australia in 2010. The company trades under the business names “1847 Wines” and “Chateau Yaldara” with its core business being the manufacture, distribution and sale of wine.

10. The company operates a winery (Chateau Yaldara) located in the Barossa Valley, South Australia. The winery was purchased by Zhitai (Arthur) Wang for AUD $22 million and sits on about 820 hectares with a 120 hectares of vineyards.  Mr Wang is one of three Chinese directors and owners of the business.  

11. The Tribunal questioned Mr Davies about the size and scope of the business. Mr Davies said that the applicant has made a $15 million capital investment into the business and acquired further vineyards for $26 million. The winery has a crushing capacity of 10,000 tons per annum. The business has 30 to 45 employees although this figure varies depending on the season. Currently the winery exports 95 per cent of its wines to China. In the 2015 financial year the winery exported $5 million of bottled wine to China. Mr Davies said that the winery has developed a marketing plan with a focus on export sales to China because the local market was saturated and the business needed to create a point of difference as a Chinese owned winery operating in Australia.

12. The winery has about six main brands and the value of wines sold range from entry level wines valued at $25 to $200 per bottle at the super premium range of the market. Most of the branded products are distributed in China through a network of some 130 retail stores which operate under licence under the brand name “1847”. Mr Davies said that company has projected that by 2018 it will have 350 retail outlets in China. The Chinese distributor is a related company called Shandong Zhenbaogu Wines which is also managed by Mr Wang.

    Consideration of Claims and evidence

13. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

    The nomination must comply with the prescribed process

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

15. The application was made using the internet. The Tribunal is satisfied that the approved form nominated the occupation of Customer Service Manager with the relevant 6-digit Australian and New Zealand Classification of Occupation (ANZSCO) code and identified Miss Shan as the person who will work in the occupation in Lyndoch, South Australia. For these reasons the requirements of r.2.72(3) are met.

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

16. 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. 1847 Winery (SA) Pty Ltd was approved as a standard business sponsor on 7 August 2015 to 7 August 2020. For these reasons the requirements of r.2.72(4) are met.

    Identification of the nominee

17. 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. The Tribunal is satisfied that the Business Nomination form identifies Miss Shan as the proposed applicant for the visa who will work in the nominated occupation in Lyndoch, South Australia. For these reasons the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

18. The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. 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

19. 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.

20. As noted above this requirement has been fulfilled. For these reasons the requirements of r.2.72(8A) are met.

    No adverse information known to Immigration

21. 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. There is nothing from departmental records available to the Tribunal or information which is otherwise known to the Tribunal which indicates any concern in this regard. For these reasons the requirements of r.2.72(9) are met.

    Specified occupation

22. 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 a relevant legislative instrument. The Tribunal finds that the occupation of Customer Service Manager and relevant 6-digit code are listed in IMMI 16/059.

23. The Tribunal has examined the tasks which are to be undertaken in the occupation, being referred to as Customer Service Manager/Customer Reception Manager in the business structure, and has reached the view the occupation does correspond with that in ANZSCO. For these reasons the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) do not apply.

    Terms and conditions of employment

24. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.

25. 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.

26. 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).

27. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument (currently $250,000): r.2.72(10)(AB). This is not the situation in the present case.

28. Taking into account the documentary evidence and the oral evidence of Mr Davies the Tribunal finds that there are no equivalent Australian employees in the applicant’s business.

29. As there is no Australian employee performing the same role as the nominee at the same location, the Tribunal has had regard to the methodology specified in IMMI 09/113 in assessing whether the applicant has determined the terms and conditions of employment that would otherwise be provided in accordance with the methodology set out in that instrument. 

30. There is no evidence before the Tribunal to indicate that there is a Fair Work instrument, state industrial instrument or transitional instrument that would apply to an Australian performing the role of Customer Service Manager.

31. The applicant can therefore rely on the inclusive examples of ‘relevant information’ listed in the instrument, such as remuneration surveys and job vacancy advertisements to determine what would be payable to an Australian performing an equivalent role. The Tribunal has considered various job vacancy advertisements from Seek.com.au, and a payscale.com assessment for the occupation, for similar roles. The Tribunal has had regard to those job vacancy advertisements and the terms and conditions of employment, as set out in the contract of employment, and is satisfied that the terms and conditions of employment for the nominee are no less favourable than those which would be provided to an Australian performing equivalent work in the same workplace. For these reasons, the Tribunal finds that the requirements of r.2.72(10)(c) are met.

    Base rate of pay

32. 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.

33. 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.

34. The nominee’s base salary will be $54,000. 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)

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

36. 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.

37. 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

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

39. Mr Davies explained that part of the company’s marketing strategy was to attract new Chinese distributors to the business by inviting them to the winery in Australia and thereby establishing their business credential as a bona fide winery with its own vineyards, production facilities, winemakers and operational staff.

40. Mr Davies stated that engaging with Chinese customers requires understanding of Chinese cultural and business practices. Mr Davies emphasised that this cultural and business knowledge cannot be understated and the company requires a full-time Customer Service Manager to manage this side of business. Mr Davies said that in the period January 2015 to August 2015 the business hosted 239 non-paying visitors, most of whom are potential future Chinese customers. The business plans to increase this number to 800 by the end of 2016. Mr Davies said that the company has also expanded its tourist infrastructure and formed strategic alliances with a number of key Chinese businesses with the aim of expanding into the wine tourist market. The tourist experience offers activities such as wine education, winemaking experience, customised wine making, wedding and corporate event bookings. All these activities need be managed and co-ordinated by the Customer Service Manager.

41. Mr Davies said that the company has a now developed a need for a Customer Service Manager to supervise and manage the planning and delivery of all aspects of the tourist activities being offered to its Chinese clients. It was submitted that the Customer Service Manager would also be required to undertake the following tasks:

    ·follow up sales and orders with customers after they have returned to China 

    ·developing a data base on customer profiles and purchasing trends 

    ·developing service delivery procedures for guests

    ·co-ordinating authentic Chinese menus for customers in restaurants and function venues which included managing costs of goods and margin calculations

    ·development of service delivery, booking and set-up procedures for Chinese functions

    ·co-ordination and supervision of property maintenance and interior design

    ·implementation of merchandising strategy

    ·development of standard procedures for cleaning, linen services and food services

    ·manage special events and banquets

    ·recruit and supervise staff

42. Mr Davies said that Customer Service Manager is a new position within the company and many of the tasks are currently not being undertaken or are being performed across different departments and lack co-ordination and planning.

43. Mr Davies said that the company undertook a recruitment exercise with Southern Cross Personnel (SCP) to try and fill the position locally. In support of this evidence the Tribunal was provided with correspondence from SCP dated July 2015 who confirm that there was a significant shortage of Customer Reception Managers with the specific skills, language abilities and experience level that the role requires in the location. SCP listed the position on SEEK.com.au for four weeks and during this time only 8 applications were received. Only two were shortlisted for interviews. The Tribunal was provided with a breakdown of the applications reviewed and reasons for the applicant’s lack of suitability.

44. Miss Shan has a Diploma in Business Administration from China. She has been employed by the Shandong Zhenbaogu Wines working in the 1847 Qingdao Store in China as Sales Manager since 2012. She is familiar with the 1847 product range that is sold in China and has undertaken in-house product training. Ms Shan was granted a subclass 402 visa in September 2014 and has been undertaking training and developing skills with the applicant since she arrived in Australia.

45. According to ANZSCO the occupation falls within the Major Group 1 Managers. The ANZSCO definition states that Managers plan, organise, direct, control, coordinate and review business operations. The Tribunal is of the view this business needs more than a customer service representative or a supervisor.  The Tribunal is satisfied the business needs a position of a more complex nature than, say, that of normal winery that confines its activities just to the sale of wine. The Tribunal also takes into account the indicative skill level indicated in ANZSCO for the occupation, that is, an associate degree, advanced diploma or diploma, ANZSCO skill level 2. Having taken into account the business’ needs for the position as described above the Tribunal is satisfied the skill level needed is at level 2.

46. Having regard to the tasks typically included in the occupation of Customer Service Manager as described in ANZSCO and the duties of the nominated position, particularly in the context of the nature and operations of the business, the Tribunal is satisfied that the tasks of the position are consistent with that of the occupation of Customer Service Manager. The Tribunal is accordingly satisfied that the position associated with the nominated occupation of Customer Service Manager is genuine. For these reasons the requirements of r.2.72(10)(f) are met.

    Employment under contract

47. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the instrument for the purpose this regulation.

48. A copy of the contract of employment which set out the terms and conditions of employment was provided to the Tribunal. For these reasons the requirements of r.2.72(10)(h) are met.

    Work agreements

49. 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 this reason the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

50. 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.

51. In this case, the nominated occupation is Customer Service Manager, ANZSCO 149212. This occupation is classified as Skill Level 2 in ANZSCO. 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.

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

   DECISION

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

   Christopher Smolicz
   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.