Modern Sky Pty Ltd (Migration)

[2018] AATA 5188

Modern Sky Pty Ltd (Migration) [2018] AATA 5188 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Modern Sky Pty Ltd

CASE NUMBER:  1621238

DIBP REFERENCE(S):  BCC2016/2739287

MEMBER:Denise Connolly

DATE:31 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2018 at 3:41pm

CATCHWORDS
MIGRATION – Employer Nomination – Master Jeweller – terms and conditions of employment – financial capacity to pay the nominee – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), r 2.72

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 22 November 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 18 August 2016. 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 r.2.72(10)(h) because the applicant did not provide a written contract of employment as requested.

4. There is a s.375A certificate on the Department’s file issued on the basis that certain electronic records included on the Department’s file relate to the Department’s information gathering and verification processes and it would be contrary to the public interest to disclose that information. The material contained in those folios includes the delegate’s assessment notes, having considered the evidence and various requirements of r.2.72, and a draft email sent to the then representative. The Tribunal has considered the material and it is not satisfied that the disclosure of the information would be contrary to the public interest. It is not satisfied there is anything sensitive about the information. Accordingly it finds that the certificate is invalid.

5. Mr Gino Jesmi, Manager, appeared before the Tribunal on behalf of the applicant on 24 October 2018 to give evidence and present arguments.

6. The applicant was initially represented in relation to the review by its registered migration agent however the Tribunal was advised two days before the hearing that he would no longer be acting as the representative and authorised recipient.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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).

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant has nominated the occupation Jeweller (ANZSCO 399411). The nominee is Mr Chohaili Subbi, a citizen of Iran. The applicant stated the nominee will be paid a base salary of $105,000 and superannuation to work 40 hour week undertaking the duties of a Master Jeweller. The applicant did not provide an employment contract with the application. In October 2016 the Department wrote to the applicant requesting, among other things, a signed employment contract. Further information was provided by the applicant but not the employment contract.

10. The delegate refused the nomination application on the basis that the applicant had not provided a contract of employment as required by r.2.72(10)(h)(i).

11. At the time of application the applicant indicated it had established a new jewellery business. The applicant provided an organisational chart indicating the business employed one jeweller, an Australian citizen, and planned to employ two Australian apprentices along with the nominee. It was submitted that the nominated position is required by the business which customises watches with precious metal, diamonds and other gems. The nominated position is a senior one being the Master Jeweller and the responsibilities of the role would be 80% jeweller and 20% jewellery design. The position requires experience of at least 10 years’ post training and the nominee must also have extensive experience in diamond setting as well as design expertise. The nominee will also supervise the existing jeweller who is able to perform only some of the work required by the business. The business also hopes to hire two apprentices through the Jewellery Association of Australia (JAA). They will be trained by the nominee. The nominee has over 45 years’ experience in jewellery design and manufacturing.

12. The applicant provided evidence of job advertisements, dated 17 and 18 August 2016. A written submission was provided indicating that, on the basis of their long experience in the jewellery profession, they knew the prospects of locating a suitable person were almost non-existent. While they would be able to locate a jeweller, the chance of locating locally a Master Jeweller with additional diamond setting and design experience was remote. That belief was confirmed by the JAA when they sought their advice.

13. The applicant has provided to the Tribunal a written submission from Raymond Daly, addressed to the applicant. He is considered to be an expert in the industry.  Mr Daly has prepared an organisation position analysis report for the business.  He has 30 years’ experience in senior management positions in international manufacturing companies. He observed that the exclusive and expensive jewellery market has grown significantly in Australia in the past five years. The market for luxury watches has grown substantially and there are no current specialist luxury watch manufacturers in Australia. The applicant has identified a niche in the jewellery market in the areas of luxury watches and jewellery. The nominee has 45 years’ experience as a Master Jeweller and specialises in design and production of high quality watches mounted with diamonds and precious gemstones. He has trained multiple apprentices.

14. The business was established in Bankstown, NSW in October 2015. It does not operate as a retail outlet but rather a manufacturer of bespoke jewellery pieces supplied to established jewellery stores and outlets. Photographic evidence was provided of the business and its workshop. The business has invested $58,468 in plant and equipment. Investment in stock and inventory stood at $177,919 as at 30 June 2017. The business employed a jeweller and two others responsible for accounting, and sales and marketing. The business set out financial projections indicating that it anticipates total income in the 2018 financial year of $725,000 and $1,250,000 in 2019. The report sets out the skills and duties of the nominated occupation. There is information from the jewellery training council of Australia indicating that there is a shortage of jewellers in Australia.

    Terms and conditions of employment

15. 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.

16. 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.

17. 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).

18. 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: r.2.72(10)(AB).

19. The applicant was asked to provide, seven days before the hearing, current information demonstrating all of the relevant requirements of r.2.72 are met. The applicant provided Mr Daly’s report but did not provide other material. An employment contract was not provided prior to the hearing. Nor was any financial documentation provided.

20. At the hearing the Tribunal explained to the applicant that all of the relevant requirements of r.2.72 must be met before the nomination could be approved, including the requirements of r.2.72(10)(c). The applicant indicated that he thought an employment contract had already been provided. He agreed to provide the contract after the hearing. He indicated that he was employed as the manager/jeweller of the business and was on a salary of $45,000. He indicated that his wife is the Director of the company but he does not know if she has an income. He could not explain why, as the manager of the business, he does not know whether his wife has an income from the business.

21. When asked about the business’ financial circumstances, the applicant indicated that the business had lodged its 2017 tax return which recorded income of about $300,000. However he advised that the business’ 2018 tax return had not yet been lodged. The Tribunal asked about the business’ financial obligations to current employees. He indicated there were two other employees, Morgan and Maggie but he did not know what they earned. The Tribunal asked why the manager of the business would not know about the earnings of its employees. He was not able to adequately explain his lack of knowledge on this issue. When asked why he was paid a salary of only $45,000 he indicated he is not there all the time. The Tribunal noted it had not seen the contract of employment, the business’ latest tax returns and information about the business’ financial capacity and its expenditure on wages. It indicated that on the basis of the evidence before it may not be satisfied that r.2.72(10)(c) is met. Initially the applicant indicated that his friend, who was in the Tribunal’s waiting room, had all of the financial documentation relevant to this requirement. The Tribunal agreed for the applicant to leave the hearing room to obtain that information. When the applicant returned to the hearing room, he indicated that his friend had left the registry and he was unable to provide the documentation.

22. The applicant acknowledged that the business intended to pay the nominee a base salary of $105,000. The Tribunal raised its concern that it may not be satisfied that the business has the financial capacity to provide to the nominee the terms and conditions indicated, including the base salary of $105,000. The applicant indicated that currently the business is making about $300,000 a year. He indicated that when the nominee commences working as a jeweller for the business the profit will definitely go up. He indicated the nominee is a high-level designer and his watches will be in demand in Australia.

23. The Tribunal indicated it needed to see further financial information to make its assessment of whether the business has the capacity to provide the terms and conditions of employment that would be no less favourable than those that would be provided to an Australian citizen/permanent resident performing equivalent work at the same location. In terms of the business’ costs the applicant indicated that the premises are leased for $1500 per month. He could not give information about salary expenditure. The Tribunal agreed to wait until close of business 26 October 2018 for the applicant to provide further documentary evidence.

24. After the hearing the applicant provided the following information to the Tribunal:

    a.the employment contract between the business and the nominee dated March 2016 recording a base salary of $105,000 plus superannuation of 9.25%.

    b.An organisational chart indicating Arezo Kataneh is the Director of the business which employees Mr Jesmi as the Manager and Jeweller. There is an account and bookkeeping casual, an Australian citizen, and a marketing casual who is a permanent resident. Other positions, including the nominated position, are proposed.

    c.The expert report by Mr Daly, previously provided.

    d.The business’ financial report and company tax return for the 2017 financial year indicating a total income of $330,530 with expenses and deductions of $321,058. The total salary and wages expenses in the 2017 financial year were $70,484.

    e.PAYG payment summaries for the 2017 financial year recording total gross payments to employees of $70,484.

    f.PAYG payment summaries for the 2018 financial year recording total gross payments to employees of $114,875.

    g.Superannuation summaries for the 2017 and 2018 financial years.

    h.Letter from the company accountant with draft company financial reports for the 2018 financial year indicating sales of $511,237 with costs of $331,512 and, after total expenses, a net profit of $18,560. The draft balance sheet indicates the business has a total equity of $25,437. The accountant indicated that the applicant holds $190,188.79 in a bank account as at 30 June 2018 as working capital funding. However bank statements were not provided.  He indicated the Director has no intention of calling upon the loan.

    i.A letter from Haitham Satar, Director, Vesta Homes Pty Ltd who states that he supports the applications enabling the nominee to come to Australia as the holder of a Subclass 457 visa to work with the business. He stated that he has known the Director and Mr Jesmi for two years and he is aware of their business plans. He is confident to support those plans and believes they are likely to be financially successful. He indicated he is happy to loan the applicant $250,000 for a five-year period to facilitate those business plans.

    j.Information from ASIC regarding the company.

    k.Credit Report from (creditor)watch confirming there are no defaults currently registered and the applicant is at low risk in terms of its credit score.

25. The Tribunal has considered the employment contract and it is satisfied that the applicant has offered the nominee a base salary of $105,000 plus superannuation of 9.25%. Having regard to the business’ organisational chart the Tribunal is satisfied that it does not currently employ a jeweller in the position of Master Jeweller. The Tribunal is not aware of any award for a Master Jeweller. Having considered the submissions regarding the position required, a Master Jeweller, and the level of skill the business requires of that position to achieve its business plan, the Tribunal is satisfied that these are the terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. It is satisfied the terms and conditions set out in the employment contract, in particular a base salary of $105,000 and the superannuation guarantee, would be those provided to an equivalent Australian.

26. The Tribunal has considered whether it is satisfied the applicant has the financial resources to provide to the nominee the terms and conditions set out in the contract of employment. This issue was raised with the applicant at the hearing and he asserted the business was in the position to provide the terms and conditions of employment set out in the contract. The Tribunal notes from the applicant’s financial documentation that in 2017 the total income of the business was only $330,530 and its expenses were $321,058. This included expenditure on salaries and wages of only $70,484. The Tribunal notes that the business has significant costs of sale; in that year $181,371. This is not surprising given the nature of the business. The Tribunal also notes that on the basis of the draft profit and loss statement for the 2018 financial year the total income was $511,237 however the costs of sales were $331,512. After expenses, including wages, salaries and superannuation of $125,788 the net profit was only $18,560. The Tribunal is of the view this financial history raises significant concerns as to whether the business has the financial capacity to provide the terms and conditions of employment set out in the employment contract.

27. The Tribunal notes that the applicant’s accountant has stated there is total cash on hand of $190,188, described by the accountant as working capital funding. The Tribunal is of the view the business needs to have that funding to continue to cover its costs of sales given it is a jewellery business. It notes that the applicant has stated that the Director has no intention of calling upon their loan. However the applicant has provided to the Tribunal a letter from the Director of Vesta Homes who has stated he is willing to loan the business $250,000 to enable it to fulfil its business plan. There is no contractual agreement between the applicant and Vesta Homes so the terms of any possible loan are not clear. Nor is there any financial information regarding Vesta Homes’ capacity to provide such a loan. The Tribunal is not satisfied it can rely on this evidence to find that Vesta Homes will in fact loan the applicant $250,000. The Tribunal gives little weight to this information in making its findings regarding the applicant’s financial circumstances.

28. The Tribunal has taken into account the evidence indicating that there is no default currently registered and that the applicant has a credit rating which is slightly better than the average Australian company and that it is in the lower risk range. However this does not satisfy the Tribunal that the applicant has the capacity to provide to the nominee a base salary of $105,000 a year plus the superannuation guarantee.

29. The Tribunal has taken into account the applicant’s financial projections and the assertions that the nominee will bring more profit to the business. It has taken into account Mr Daly’s report which supports the nomination application and indicates there is an increasing demand for watches and jewellery of this nature. However it is of the view the assertions regarding the business’ future financial status are merely speculative at this stage.

30. Overall the Tribunal is not satisfied the applicant’s financial circumstances are such that it has the capacity to provide the terms and conditions of employment, in particular the base salary of $105,000 and the superannuation guarantee, that would be provided to an Australian citizen or permanent resident. The Tribunal therefore is not satisfied 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.

1. For these reasons the requirements of r.2.72(10)(c) are not met.

2. As the applicant has not met a mandatory requirement for the approval of the nomination, the Tribunal has not considered whether the other requirements of r.2.72 have been met.

3. 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

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

   Denise Connolly
   Member

   
   

   ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   2.72 Criteria for approval of nomination — Subclass 457…

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

   (a)a standard business sponsor; or

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

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

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

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

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

   (a)a standard business sponsor; or

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

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

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

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

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

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

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

   (a)if:

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

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

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

   (b)if:

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

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

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

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

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

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

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

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

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

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

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

   (b)if:

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

   (ii)      the person is a standard business sponsor;

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

   (c)if:

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

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

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

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

   (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

   (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 the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; 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.