TARTALIA BUILDING PTY LTD (Migration)

[2019] AATA 2601

TARTALIA BUILDING PTY LTD (Migration) [2019] AATA 2601 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tartalia Building Pty Ltd

CASE NUMBER:  1706059

HOME AFFAIRS REFERENCE(S):           BCC2017/284619

MEMBER:Antonio Dronjic

DATE:30 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 30 April 2019 at 1:24pm

CATCHWORDS
MIGRATION – nomination of occupation – genuine position – exempt from labour market testing (LMT) – whether nominating business meets requirements – genuine economic benefit to Australia in creating position – position created to secure a migration outcome for applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140, 359
Migration Regulations 1994, Schedule 2, rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 and Border Protection on 7 March 2017 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 21 January 2017. 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 s.140GBA and was not exempt from the labour market testing (LMT) requirements pursuant to s.140GBB or s.140GBC. In the decision record, the delegate stated that he or she did not assess the applicant against the criteria as set out in r.2.72.

4. The applicant applied to the Tribunal on 26 March 2017 for review of the delegate’s decision. With the review application, the applicant submitted a copy of the primary decision record. The applicant was represented in relation to the review by its registered migration agent.

5. On 1 November 2018 the Tribunal sent a letter to the applicant, which contained a request to the applicant to provide information demonstrating that the nomination met all the requirements of the criteria in r.2.72 of the Regulations and information that demonstrates that the sponsoring business meets the relevant LMT requirements (s.140GBA). The request was made pursuant to s.359(2) of the Act.

6. On 28 November 2018, after the applicant was granted an extension of time to provide information in writing to the Tribunal, the applicant’s representative submitted the following documents:

• Submissions dated 28 November 2018;

• Notification of Approval as a Standard Business Sponsor for Tartalia Building Pty Ltd dated 6 March 2017 as evidence that the sponsorship was approved until 6 March 2022;

• Employment contract signed on 20 January 2017 by the nominee in his capacity of a business director and the employee;

• Job description;

• Extracts from Payscale and advertisements placed on seek.com as evidence of the market salary rate for carpenters in Western Australia;

• Nominee’s resume and work experience letters;

• ASIC & ABN details for Tartalia Building Pty Ltd;

• Job advertisement placed by the sponsoring business in January 2017 on the Job Search web site; and

• Evidence of LMT conducted in 2018 including a copy of the advertisement and the results of recruitment attempts.

1. On 8 March 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant’s authorised person to give oral evidence and present arguments at a hearing scheduled for 3 April 2019.

2. On 27 March 2019 the applicant’s representative wrote to the Tribunal submitting that the sponsoring business advertised for the position of a carpenter in 2018 on Job Search and had minimal response; that at the time of nomination lodgement, there were no mandated timeframes in which the advertisement had to run; and that at the time of application, the Department encouraged the use of the Recruitment Summary Table, as uploaded by the nominator.

3. On 3 April 2019, the applicant’s representative submitted:

• business activity statements (BAS) showing payroll and wages for the period 30 October 2017 to December 2018;

• Bank report evidencing remuneration payments;

• Invoices demonstrating the business is active and ongoing; and

• Remittance advice showing that the invoices are paid.

1. Mr Rosenthal appeared before the Tribunal via video link on behalf of the sponsoring business to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent.

2. In his evidence, Mr Rosenthal stated that he has authority to represent the sponsoring business in his capacity of a business manager. He is the sole director and shareholder of the sponsoring business and is employed by the business as both carpenter and business manager. He stated that his duties include managing the day to day operations of the business, dealing with all financial aspects of the business and he is entrusted with hiring and firing employees. Mr Rosenthal is also the person nominated by the business for the position of a carpenter. His annual salary is approximately $70,000, currently paid on a weekly basis by way of transferring funds into Mr Rosenthal’s bank account.

3. I noted that the business did not provide requested financial reports for the past three financial years and the applicant’s representative undertook to provide them after the hearing.

4. I referred to the BAS provided with the review application and noted that the amount of wages paid by the business to the nominee varies. As an example, BAS for the period 1 July 2017 to 30 September 2017 is presented as evidence that the amount of $17,500 was paid as wages to the nominee. However, BAS for the period 1 October 2018 to 31 December 2018 provides evidence that during this period an amount of $28,306 was paid as a ‘total of salary wages and other payments’. Mr Rosenthal explained that he paid himself higher wages in the second part of the financial year in order to pay the total of $70,000 in annual salary.

5. The business was registered on 21 January 2015 and it commenced its operations within the month from the day it was registered. The business operates from Mr Rosenthal’s residential address and does not and has never employed any other employee apart from him. The business does not retain services of any subcontractors and is paying approximately $1,500 per annum for the services rendered by an external accounting firm.

6. Mr Rosenthal, who holds Estonian citizenship and passport, first came to Australia in January 2013 as a holder of a working holiday visa. On 12 February 2014, he was granted a second working holiday visa that remained valid until 31 January 2015.

7. On 30 January 2015, he applied for a Subclass 457 visa based on the sponsorship and nomination made by his own business, Tartalia Building Pty Ltd, and the visa was granted on 21 July 2015. It remained valid until 21 January 2017.

8. In Estonia, he did not complete any education relevant to his nominated occupation of a carpenter but claims to have relevant work experience.

9. He claims that he commenced full-time employment at the sponsoring business in January 2015. He works five to six days per week. From early 2015 until June 2018, the sponsoring business was engaged as a subcontractor by KHG Contracting Pty Ltd. This mining business supplied all work for Tartalia Building Pty Ltd. Mr Rosenthal gave evidence that the sponsoring business did not have any other (individual) clients and that carpenters’ services were exclusively provided to this business. From June 2018, a new mining company, PPS Servicing Pty Ltd, has taken over and is currently subcontracting the sponsoring business.

10. I enquired as to what happens if PPS Servicing Pty Ltd is unable to provide enough work for the sponsoring business. Would he be required to work two days per week instead of on a full-time basis? Mr Rosenthal stated that this never happened.

11. I noted that the applicant’s representative provided a copy of an online advertisement placed by the business on the Job Search web site in January 2017 as evidence of labour market testing undertaken by the sponsoring business. I observed that Mr Rosenthal stated in his evidence that he is and has been working as a carpenter for the sponsoring business since January 2015. I further observed that he is the sole director and shareholder of the sponsoring business and that, as a business manager, makes decisions as to who is going to be employed by the business and that he signed the employment agreement both as an employee and as a company director. I enquired as to why the business placed this ad and whether he ever intended to employ an alternate person to the nominated position. Mr Rosenthal stated that he had to comply with legal requirements. He further stated that if the business secures more work he would like to employ an additional carpenter.

12. I expressed my concerns that the position was created to secure a migration outcome for Mr Rosenthal. I referred to the Departmental policy noting that I am not bound to follow it, and enquired if there is another genuine economic benefit resulting to Australia in creating this position, considering that the sponsoring business has never employed any other person but Mr Rosenthal.

13. Upon my invitation, the applicant’s representative submitted that the nominated position is located in regional Australia and provides ongoing employment for the nominee. She undertook to provide post hearing submissions addressing these criteria as set out in r.2.72(10)(f). She reiterated that the advertisement was not placed on Gumtree as stated in the ‘summary of domestic recruitment efforts’ submitted to the Department with the nomination application.

14. I noted that in her submissions, the representative argued that the business is exempt from undertaking LMT on the basis that the nominee is an Estonian citizen (Estonia being one of the signatories to the General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization) who has been nominated following two years’ full-time employment in Australia with the same nominating employer.

15. I observed that the current legislative instrument (LIN 18/183) does not contain transitional provisions and simply repeals the previous instrument (IMMI 17/109). Similarly, IMMI 17/109 does not contain transitional provisions and repeals the previous instrument (IMMI 14/107). In this situation, it appears that the relevant instrument is the one in force at the time of the Tribunal’s decision and accordingly the sponsoring business would be exempt from undertaking LMT pursuant to s.140GBA(1)(c).

16. I noted that in his evidence, Mr Rosenthal stated that his duties include managing the day to day operations of the business and dealing with all financial aspects of the business including hiring and firing employees. Referring to the ANZSCO Dictionary and description of duties undertaken by a carpenter, I observed that these tasks are not tasks usually undertaken by a carpenter. I expressed my concerns as to whether the nominating business meets r.2.72(10)(aa) which requires that the nominated occupation and its six-digit code correspond to an occupation and six-digit code specified in the relevant instrument. The applicant’s representative undertook to provide post hearing submissions addressing this criterion on or before 17 April 2019.

17. On 17 April 2019, the applicant’s representative submitted:

• Company tax returns for 2016 and 2017;

• PAYG payment summaries for the nominee for 2016 and 2017 financial years evidencing the gross payment of $70,000; and

• Financial statements for the sponsoring business for the years ended on 30 June 2016 and 30 June 2017.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

2. In considering whether the position associated with the nominated occupation is genuine, the Tribunal has had regard to the Department’s Procedures Advice Manual PAM3. As regards the application of these policy guidelines, the Tribunal notes that although it may be guided by policy, it is not bound to follow it: see Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 Smith FM held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and therefore are incapable of being elevated into legally necessary or relevant considerations.

3. According to the departmental policy, the 457 visa program was designed to enable employers to address labour shortages by bringing in genuinely skilled workers in circumstances where they could not source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to ‘create a position’ – for example, in order to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available.

4. The departmental policy sets up several examples of factors that might indicate that facilitating the entry or stay of the nominee is the primary objective of the application. It includes an example where the nominee is a director or owner of the sponsoring business.

5. It is also noted in the PAM3 guidelines that:

   Note: The above policy settings do not prevent individuals from sponsoring themselves (that is, "self-sponsorship") ­– however, in such cases there needs to be another reason for the position being created.

   It cannot just be to facilitate a long-term stay in Australia and/or create a pathway to permanent migration. Such arrangements can be approved under policy if there will be a genuine economic benefit resulting to Australia (for example, an innovative IT entrepreneur intends to move their business to Australia, which will support growth in the technology sector and create jobs for Australians).

6. In other words, the mere fact of a business being a form of self-sponsorship does not preclude the nomination approval providing that there is another reason why the position was created – either to create jobs for Australians and/or to bring significant economic benefits to Australia.

7. The nominee’s job is the only job created by the sponsoring business. There is little evidence before the Tribunal indicating that the creation of this position would bring significant benefit to Australia. The Tribunal acknowledges that the position is located in regional Australia and that the sponsoring business is paying tax to the ATO.

8. Mr Rosenthal stated in his evidence that he is the owner and the business manager of the sponsoring business. He is also the sole director and shareholder and is employed by the business as both carpenter and business manager. He stated that his duties include managing the day to day operations of the business, dealing with all financial aspects of the business and he is entrusted with hiring and firing employees. He appeared before the Tribunal in his capacity of a business owner and director to give evidence on behalf of the sponsoring business.

9. The Tribunal considered the ANZSCO description of the occupation of a carpenter. While the Tribunal is not bound by that description, the Tribunal is not satisfied that managing day to day operations of the business, dealing with financial aspects of the business and hiring and firing employees are duties ordinarily undertaken by a carpenter as outlined in the ANZSCO.

10. The nominee is the only employee of the business which operates from his residential address. The business generates income as a subcontractor of a mining company, PPS Servicing Pty Ltd. The sponsoring business has no other clients and is entirely dependent on the work provided by PPS Servicing Pty Ltd.

11. When the Tribunal enquired as to whether the business ever intended to employ an alternate person to the nominated position, considering that the nominee, in his capacity of a business owner and manager, was entrusted with hiring and firing employees, Mr Rosenthal stated that he advertised for the position because he had to comply with legal requirements. He made the decision to employ himself to the nominated position. He signed the employment agreement in his capacity of a business director and employee. It is difficult to accept that Mr Rosenthal would even consider employing someone else who applied for the position considering that his stay in Australia depended (and still depends) on being sponsored and nominated by an Australian business.

12. Based on the evidence before it, the another genuine economic benefit resulting to Australia in creating this position The Tribunal has taken into account the evidence regarding the business’s turnover, the position description, the employment agreement and the financial documents submitted to the Tribunal. It considered submissions provided by the applicant as well as documentary evidence submitted in support of the application. Based on the evidence before it, the Tribunal finds that the main purpose of creating a position of a carpenter within the business was to secure an immigration outcome for Mr Rosenthal and not because the business has a genuine need to employ a carpenter on a full-time basis. The Tribunal finds this to be the primary objective of the application.

13. Based on the evidence before me, the Tribunal finds that the position associated with the nominated occupation is not a genuine position. For these reasons the requirements of r.2.72(10)(f) are not met. Accordingly, the decision under review must be affirmed.

DECISION

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

Antonio Dronjic
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)is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

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

(iv) a party to negotiations to a work agreement (other than a Minister); and

(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.