1601323 (Migration)

[2016] AATA 4530

1601323 (Migration) [2016] AATA 4530 (21 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AMFAH (Aust) Pty Ltd

CASE NUMBER:  1601323

DIBP REFERENCE(S):  BCC2015/3636312

MEMBER:Brook Hely

DATE:21 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 21 October 2016 at 12:40pm

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 29 January 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 2 December 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 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) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation was genuine.

4. The applicant appeared before the Tribunal on 23 June 2016 to give evidence and present arguments, with Mr Mohammad Ramzan giving oral evidence on the applicant’s behalf. The applicant was represented in relation to the review by its registered migration agent. For convenience, the Tribunal hearing was conducted as a combined hearing with Case Number 1602132. That matter involved the applicant’s application for approval for a Restaurant Manager in relation to one of its restaurant (Asian Essence). The nominated worker in respect of that application was Mr Adil. Mr Ramzan’s oral evidence at the hearing was treated as evidence for each matter. Mr Ramzan and his agent agreed with this approach.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Position must be genuine

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

   Application to the Department

8. According to the application submitted to the Department, the relevant nominated position was a chef. Specifically, the nomination related to the nominated worker Mrs Hafizah Binti Hassan and the relevant position was for her to work as a chef in a restaurant owned by the applicant named Asian Essence. The application included several documents in relation to this restaurant and this position, including a position description, business plan, restaurant floor plan, menu, employment contract, photographs, and promotional flyer for the opening of the restaurant. As part of the application, the applicant’s agent also provided documents relating to a second restaurant acquired by the applicant named ‘Zouk Asian and Western Restaurant’ (‘Zouks’). It was submitted that in light of this business expansion, new staff would be required in order to support the development and operations of the multiple restaurant premises owned by the applicant. Mr Ramzan also gave evidence at the hearing that it was the applicant’s intention that Mrs Hassan would work as a chef at both restaurants, which she had been doing since January 2016.

   Decision of the delegate

9. As noted earlier, the delegate refused the application on the basis that she was not satisfied that the relevant position was genuine. According to the decision record of the delegate, a copy of which was provided to the Tribunal as part of the application, the relevant restaurant had only recently been opened and there was insufficient independently verifiable evidence demonstrating the scale of the operation in terms of the actual level of business activity and turnover. The delegate was also concerned that the current staffing arrangements were not consistent with the position being genuine.

   Application to the Tribunal

10. As part of the application to the Tribunal, the applicant provided a number of additional documents in relation to the relevant restaurants, including:

    a.organisational chart for each restaurant

    b.bank statement extract in relation to a bank account operated by the applicant covering the period of 9 - 22 June 2016

    c.ASIC extract in relation to the registration of the relevant business names for the restaurants

    d.menus and photographs of the restaurants

    e.screen printouts in relation to the Zouks websites and Asian Essence facebook page, as well as online reviews

    f.job advertisement for a chef/cook/manager posted on Gumtree on 28 August 2015, as well as a printout of replies to this advertisement

    g.table summarising the recruitment exercise conducted by the applicant

    h.contract for the sale of business in relation to the applicant’s acquisition of Zouks

    i.document providing basic information in relation to the incorporation of the applicant, the staff working at the relevant restaurants and the applicant’s alleged chronic shortage of staff.

    Tribunal hearing

11. At the hearing, Mr Ramzan gave oral evidence in relation to the chronology of his acquisition of the two restaurants. Whilst aspects of this evidence were difficult to follow, in summary his evidence was as follows:

    a.He created the applicant as a company in August 2015 as a means to provide an additional income stream to assist with his daughter commencing university. He worked as an Imam at a mosque and his wife had previous restaurant experience from working as a cook at another restaurant named Riks Maha since February/March 2015. His wife also had qualifications as a cook from Pakistan.

    b.Riks Maha was run by another man named ‘Sultan’ under a company called Al Falah Pty Ltd (‘Al Falah’). Mr Ramzan took over this company in August 2015, although the restaurant had closed a few days prior. He then sold it approximately one month later. Separately, he took over a soup shop and converted it to Asian Essence, which opened in October 2015. He also used the proceeds from selling Al Falah to acquire his second restaurant, Zouks, in December 2015.

    c.The nominated worker, Mrs Hassan, has been working as the head chef at both restaurants on a full-time basis since obtaining work rights in January 2016. Mr Adil’s visa application has not yet been approved and he has not yet commenced working for the applicant.

12. At the hearing, Mr Ramzan also gave oral evidence in relation to various aspects of the business, including its financial performance, staffing and operations, recruitment for the positions of chef and restaurant manager, Mr Ramzan’s purchase of the two restaurants, the skills and qualifications of Mrs Hassan and Mr Adil to perform their respective occupations and the terms and conditions of their employment.

    Post-hearing documents and submissions

13. Following the hearing, the applicant’s agent provided further written submissions dated 20 July 2016, 1 August 2016 and 24 August 2016. In summary, it was submitted that the two restaurants operated by the applicant are very busy and require the skills and experience of Mrs Hassan (as chef) and Mr Adil (as restaurant manager) and that alternate candidates for these positions could not be found despite exhaustive efforts. The submissions also responded to various concerns that had been raised by the Tribunal at the hearing. The submissions also attached further documents including:

    a.bank statement covering the period 9 May 2016 – 11 July 2016

    b.evidence of job advertisement placed on Gumtree by Asian Essence

    c.copies of resumes submitted in response to the Gumtree advertisements

    d.resume and qualifications for Mrs Hassan and Mr Adil

    e.letters of appreciation for the applicant’s business from Rotary International and Christian Life Community

    f.2016 financial statement for the applicant, as well as recent Business Activity Statements covering the period from October 2015 – June 2016.

    Findings and reasoning

14. The Tribunal acknowledges that it has been provided with evidence to demonstrate that the relevant restaurants are operational and busy. The Tribunal has given this evidence due weight in considering the applicant’s need to employ a chef and its reasons for appointing Mrs Hassan to this role.

15. However, for the reasons that follow, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. First, the Tribunal has concerns with Mr Ramzan’s oral evidence in relation to his acquisition and sale of Al Falah, which struck the Tribunal as highly unusual. In summary, it was his evidence that Al Falah was operating the Riks Maha restaurant. However, the owner, Sultan, began experiencing some personal problems and closed the restaurant in August 2015. A few days later he then gifted the business to Mr Ramzan, who sold it approximately one month later for $120,000. Mr Ramzan confirmed that the restaurant remained closed during the entire period that he owned it.

16. The Tribunal’s concerns in relation to this highly unusual transaction are compounded by the fact that Mr Ramzan was very vague when pressed for details in relation to the business. For example, he did not know how long Sultan had operated the business. When asked to approximate, he said it might been a few months but maybe it was years. Also, his explanation in relation to Sultan having personal problems and that they knew each other through the mosque did not strike the Tribunal as a plausible reason for Sultan to gift a business worth $120,000, or why he chose Mr Ramzan – a person who knew very little about Sultan or his history with the business and with whom he has allegedly had no contact since the gift was made. The Tribunal also had difficulty accepting as plausible his explanation as to how he then sold the business, namely that within his one month of ownership he happened to be having dinner at a Nandos restaurant owned by someone he knew through the mosque who, upon learning that Mr Ramzan had acquired the business, offered to buy it. And, the Tribunal is concerned that Mr Ramzan was not consistent in his evidence as to how long he owned this business. In some parts of his evidence he indicated that it was only for one month, at other times he indicated that it was for ‘a few months’ and at one point he indicated that he acquired the business in August 2015 and then sold it in December 2015 (ie, 3 or 4 months later). Particularly given the unusual circumstances of this transaction, and given also that this transaction took place only approximately 1 year ago, the Tribunal is concerned that Mr Ramzan was not more certain or consistent in his evidence when questioned about this topic.

17. The Tribunal’s above concerns in relation to this business transaction are compounded further by the lack of evidence in relation to this transaction. The Tribunal flagged at the hearing its concern with the plausibility of Mr Ramzan’s oral evidence in relation to how he acquired and then sold Al Falah. Mr Ramzan indicated in his oral evidence that he did possess documentary evidence in relation to his acquisition and sale of Al Falah. He agreed to provide this evidence following the hearing. However, despite the Tribunal allowing time for this evidence to be provided and specifically requesting at the hearing the complete paper trail in relation to these transactions, no further evidence has been provided in relation to either the applicant’s acquisition or sale of this business or any explanation as to why not.

18. In the post-hearing submission dated 20 July 2016, the applicant’s agent asserts that, despite the details of this transaction being unusual, this is not relevant to the issues at hand. Specifically, it was contended that the Tribunal should disregard any concerns it may have about this transaction on the basis that it has no relevance to whether the decision to appoint a chef and restaurant manager for a separate business entity was genuine. It was further submitted that the applicant had a demonstrated need for both positions and had appropriately selected Mrs Hassan and Mr Adil on the basis of their suitable qualifications and experience. The Tribunal does not accept this submission. The central issue in the present case is whether a particular nominated position is genuine. The bona fides of the sequence of events and business transactions leading up and surrounding the establishment of the relevant business, restaurant and position are, in the Tribunal’s view, entirely relevant to the question of whether it should accept this position to be genuine. Likewise, the Tribunal’s view on the question of such bona fides may legitimately bear on its assessment of Mr Ramzan’s credibility, and in turn on whether it should it accept his claims regarding his need for the relevant position.

19. The tribunal made its concerns known at the hearing in relation to the plausibility of Mr Ramzan’s evidence regarding how he acquired this business, and then how this transaction related to his recruitment of Mrs Hassan. The Tribunal also flagged its concern with his credibility in relation to these matters. The Tribunal allowed time for him to provide documents in relation to this transaction – documents that he claimed to possess. However, as noted above, despite allowing this time no such documents were provided. In circumstances where this transaction was so unusual, where Mr Ramzan’s oral evidence on this transaction raised plausibility concerns, where the Tribunal raised with Mr Ramzan such plausibility concerns, and where the applicant’s acquisition of Al Falah involved a direct connection to Mrs Hassan (who according to Mr Ramzan was separately sponsored by Al Falah), the Tribunal rejects the agent’s submission of relevance and has placed significant weight on its concerns around this transaction.

20. The Tribunal’s concerns in relation to this transaction are compounded further by Mr Ramzan’s oral evidence in relation to his recruitment of the nominated worker, Mrs Hassan. In summary, it was his oral evidence that she had previously worked as a cook with his wife at Riks Maha. He also gave evidence that she had been sponsored by Al Falah (when it was owned by Sultan) but the sponsorship application was unsuccessful. However, when pressed as to specifics as to how she was actually recruited to the position, the Tribunal found his evidence to be at times vague and lacking in plausibility. In summary, he gave evidence that she responded to the online job advertisement that was posted by the company. He specifically denied that he or his wife had informed her about the position and he maintained that it was simply a coincidence that she had previously worked with his wife and been sponsored by Sultan. He also alleged that Mrs Hassan did not know that the business was connected to him or his wife when she applied; or that he knew about the company’s sponsorship of her when it was owned by Sultan. The Tribunal is troubled by this evidence. There are no details relating to Mrs Hassan amongst the evidence the applicant supplied to the Department in relation to the persons who responded to the job advertisement. The tribunal acknowledges that, following the hearing, the applicant’s agent provided copies of other resumes submitted in response to this job advertisement. However, this does not explain why Mrs Hassan’s documents were not among them. The applicant has not provided documents in relation to how he recruited Mrs Hassan or Mr Adil, such as emails and text messages, despite indicating at the hearing that he would do so. The agent’s post-hearing submission also attempted to explain away the deficiencies in Mr Ramzan’s explanation at the hearing on the ground that he had could not adequately recall all of the details and there are a variety of possibilities as to how this occurred. Whilst the Tribunal has made allowances for this, in combination with its other credibility concerns in this matter, the Tribunal finds that this explanation does not outweigh its concerns.

21. As indicated earlier, Mr Ramzan gave evidence elsewhere at the hearing that Mrs Hassan was previously sponsored by Al Falah. The Tribunal considers it to be a highly suspicious coincidence that Mrs Hassan was already sponsored by the same company that Mr Ramzan acquired, yet he claimed to have had no knowledge of this at the time or that Mrs Hassan was aware of this connection. The Tribunal’s concerns are compounded by the highly unusual nature of this transaction, as discussed above. The Tribunal has had regard to the applicant’s post-hearing submissions on this issue. In summary, it was submitted that Mr Ramzan was preoccupied with the creation of his new business, AMFAH (Aust) Pty Ltd, and he did not actually operate Riks Maha at any notable operational capacity as the restaurant was under renovation before its sale to a third party. It was also submitted that Mr Ramzan cannot recall clearly how Mrs Hassan first came to apply for the position. However, in combination with its other concerns, the Tribunal does not find this submission persuasive and is left with serious doubts in relation to this issue.

22. As indicated above, the Tribunal notes that it was contended in the applicant’s post-hearing submission that Riks Maha was in fact closed for renovations during the applicant’s brief period of ownership of Al Falah. Again, the Tribunal is troubled by this claim. The Tribunal spent considerable time exploring with Mr Ramzan its concerns around the unusual nature of this transaction and why Sultan would gift him a business that he was able to then sell for $120,000 approximately one month later. At no stage did Mr Ramzan make any claim that he added any value to the business, such as through renovating the premises. Nor have any documents been supplied to substantiate this new claim, such as renovation receipts. The Tribunal rejects this claim as a post-hearing attempt to cast a more legitimate light on this unusual windfall to the applicant, namely by implying that the applicant added value to the business prior to its sale.

23. The Tribunal is mindful that the relevant question for present purposes is not simply whether it finds Mr Ramzan to be credible, but rather whether the position associated with the nominated occupation is genuine. As articulated in Cargo First v MIBP [2016] FCA 30, this requires a qualitative analysis of the position which requires the Tribunal to consider whether the position nominated is in a skilled occupation and is genuinely needed by the employer. The evidence advanced in support of such a finding relies heavily on the claims made by Mr Ramzan in relation to the operational needs of the business. For the reasons above, the Tribunal has been left with very serious credibility concerns in relation to Mr Ramzan and it therefore finds his evidence on these matters to be unreliable. The Tribunal has considered the evidence in totality regarding the operations of the business, including the documentary evidence to show that the relevant restaurants have been busy. However, as the Tribunal cannot rely on the evidence of Mr Ramzan, and on the limited other evidence before it, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. It follows that the requirements of r.2.72(10)(f) are not met.

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

   DECISION

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

   Brook Hely
   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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

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

   (i)       are provided; or

   (ii)      would be provided;

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

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

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

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

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

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

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

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

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

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

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

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

   (A)for the occupation in the ASCO; or

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

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

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

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

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

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

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

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

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

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

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

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

   (A)for the occupation in the ANZSCO; or

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

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

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

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

   (ii)      if:

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

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

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

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

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

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

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

   (h)either:

   (i)       the person will:

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

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

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

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

   (a)the terms and conditions of employment; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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