Yap (Migration)

[2017] AATA 1575

Yap (Migration) [2017] AATA 1575 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zheng Zhuang Yap

CASE NUMBER:  1601428

DIBP REFERENCE(S):  BCC2015/3207647

MEMBER:Danica Buljan

DATE:23 August 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

• Paragraph 457.223(4)(da); and

• Paragraph 457.223(4)(e) of Schedule 2 to the Regulations.

Statement made on 23 August 2017 at 5:01pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Skills, experience and qualifications necessary for the nominated occupation – Cafe or Restaurant Manager – Sufficient evidence provided that applicant has appropriate skills and employment background – Independent skills assessment not required

LEGISLATION
Migration Act 1958, ss 65, 359, 360

Migration Regulations 1994, Schedule 2, cl 457.223

CASES

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168

Visnumolakala v Minister for Immigration [2006] FMCA 1209

Alimi v Minister for Immigration & Anor [2007] FMCA 1520

Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767

Moller v Minister for Immigration and Citizenship [2007] FMCA 168

Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492

Parekh v Minister for Immigration and Citizenship [2007] FMCA 633

Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843

Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116

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 21 January 2016 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 2 November 2015. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).

3. One of the criteria to be satisfied at the time of decision is clause 457.223, which requires the applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in subclause 457.223(4), which is set out in the attachment to this decision. In the present case, specific claims have been made against subclause 457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in clause 457.223.

4. The applicant lodged his application for a subclass 457 visa on the basis that he was to be employed as a 'Cafe or Restaurant Manager' (ANZSCO[1] Code 141111).

   [1]ANZSCO: Australian and New Zealand Standard Classification of Occupations, 2013

5. The delegate refused to grant the visa because she was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. As a result, the delegate found that the applicant did not meet the requirements of paragraph 457.223(4)(da) of the Regulations.

6. The applicant lodged an application for review with the Tribunal on 2 February 2016 and a copy of the primary decision was included with the application for review.[2] The Tribunal has before it the departmental file[3] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [2]AAT Case file 1601428 (T1), f.1-4

   [3]D1 -   Departmental file BCC2015/3207647,  folio numbered 1-111

   [4]AAT Case file 1601428, folio numbered 1-71

7. On 31 January 2017[5] the Tribunal invited the applicant under subsection 359(2) of the Act to provide information that confirmed that he was the subject of an approved business nomination for the purposes of paragraph 457.223(4)(a). It also invited him to provide information that confirmed that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation for the purposes of paragraph 457.223(4)(da) of the Regulations. Extracts from the relevant Regulations were included with the Tribunal invitation to facilitate the applicant’s response.

   [5]T1, f.16-19

8. On 14 February 2017 the applicant’s representative responded to this invitation with additional information to support the application for review.[6] In particular, the representative provided evidence of a ‘Diploma of Hospitality’ from TAFE Queensland (dated 13 October 2016[7]), curriculum vitae[8], employment contract[9], bank statements[10], payslips[11] and 2016 income tax assessment notice[12] and PAYG summary[13].  In addition, the representative submitted copies of the standard business sponsorship approval (dated 3 December 2015[14]) and business nomination application[15] lodged by New Life Development Pty Ltd on 9 February 2017. 

   [6]T1, f.22-52

   [7]T1, f.23-24

   [8]T1, f.22

   [9]T1, f.41-43

   [10]T1, f.27-28

   [11]T1, f.29-36

   [12]T1, f.37

   [13]T1, f.38

   [14]T1, f.50-51

   [15]T1, f.47-49

9. Further, departmental records indicate that the business nomination application was pending before the Department as at 23 August 2017.[16]

   [16]T1, f.63-65

10. Therefore, in accordance with subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite the parties to appear before the Tribunal to give evidence in relation to the decision under review.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets the requirements of paragraph 457.223(4)(da) of the Regulations. The Tribunal also considers paragraph 457.223(4)(e) to be relevant to the issues before it. These provisions state:

    (4)      The applicant meets the requirements of this subclause if:

    …

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    …

    The ‘Skills, Qualifications and Employment Background’ Requirement - Paragraph 457.223(4)(da):

13. In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[17] provide:

    4.7.6.2Assessment against the nominated occupation in ANZSCO

    [17]PAM3: ‘Procedures Advice Manual 3’

    When assessing this criterion, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) should be referred to as the principal source of information on the skill requirements for the nominated occupation – that is, the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.

    Officers should consider the ‘Indicative Skill Level’ specified for the nominated occupation in the ANZSCO rather than the general ANZSCO Skill Level. They should also make sure that the qualifications and experience of the visa applicant are relevant to the nominated occupation, for example:

    ·     if ANZSCO suggests that an Architect should hold a bachelor degree or higher qualification and a visa applicant, who is nominated as an architect, provides evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa without obtaining further evidence of relevant qualifications;

    ·     if ANZSCO suggests that a Marketing Specialist should also hold a bachelor degree or higher qualification and a visa applicant, who is nominated as a marketing specialist, provides evidence of holding a bachelor degree in advertising, this degree would be relevant and the decision maker could be satisfied that the applicant had the requisite skills.

    If a visa applicant does not possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, they may still meet this criterion if they have skills and experience to perform the bulk or core elements of the occupation. For example, if a visa applicant were to nominate an occupation listed under a “not elsewhere classified” heading, it would be unreasonable to consider that the visa applicant possesses skills and experience in every prescribed task.

    Officers should also consider that some highly skilled visa applicants will specialise in a small range of tasks, rather than in the full range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for visa applicants under the programme.

    4.7.6.3 Providing evidence of skills, qualifications and employment background

    …

    Where a mandatory skills assessment is not required under policy, decision makers need to decide whether:

    · they are satisfied that paragraph 457.223(4)(da) is met based on information provided with the visa application – for example, the visa applicant is a lawyer and has provided transcripts from their law degree as well as evidence of completing required practical professional training, a comprehensive CV and work references outlining previous work experience; or

    · additional information needs to be requested – for example, ANZSCO requires the visa applicant to have education qualifications plus work experience, however, the CV provided does not clearly outline what experience the visa applicant has, and work references would assist the delegate to assess whether paragraph 457.223(4)(da) is met; or

    ·     a discretionary skills assessment should be requested.

    …

    [Tribunal emphasis]

14. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[18] Specifically, the Courts have 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 that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[19]

    [18]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [19]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

15. Nevertheless, the Tribunal considers that the policy guidelines provide a useful starting point for the purposes of assessing whether the applicant meets the requirements of paragraph 457.223(4)(da) at the time of decision.

16. In addition, as paragraph 457.223(4)(da) places the nominated occupation at the centre of its focus, the Tribunal also considers it appropriate to have regard to ANZSCO Code 141111 in assessing whether the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation ‘Cafe or Restaurant Manager’.

17. In particular, the Tribunal notes that the Courts have generally endorsed ANZSCO as a consistent and authoritative set of definitional rules and descriptions for classifying occupations: Parekh v Minister for Immigration and Citizenship[20] (‘Parekh’s case’) and Wang v Minister for Immigration and Multicultural and Indigenous Affairs[21] (‘Wang’s case’). 

    [20]    See Parekh v Minister for Immigration and Citizenship [2007] FMCA 633 (where the Court provided such approval in respect of ASCO the predecessor to ANZSCO in a subclass 495 case).

    [21]    Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843 took a similar approach in a subclass 136 case

18. On the other hand, the Tribunal acknowledges that Parekh’s and Wang’s cases involved different legislative provisions[22], rather than the interpretation of paragraph 457.223(4)(da). It also notes that occupational assessments are complex and dynamic, as well as the likely statistical limitations ANZSCO may well have in properly classifying individual occupations throughout Australia and New Zealand.

    [22]ibid

19. The Tribunal also accepts that the determination of the application requires more than a narrow matching process between an applicant's tasks and an ANZSCO occupational definition. Instead, it is preferable to approach the matter by ascertaining the applicant's skills and how these skills are to be applied in the nominated occupation.[23] 

    [23]Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116.

20. For the purposes of paragraph 457.223(4)(da) in the current matter, the nominated occupation is that of an ‘Cafe or Restaurant Manager’ and ANZSCO Code 141111 specifies the skill level for this occupation as follows:

    UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS            

    CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    In New Zealand: NZ Register Diploma (ANZSCO Skill Level 2)

    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    ·     planning menus in consultation with Chefs 

    ·     planning and organising special functions 

    ·     arranging the purchasing and pricing of goods according to budget 

    ·     maintaining records of stock levels and financial transactions 

    ·     ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance 

    ·     conferring with customers to assess their satisfaction with meals and service 

    ·     selecting, training and supervising waiting and kitchen staff 

    ·     may take reservations, greet guests and assist in taking orders

    Occupation:

    141111 Cafe or Restaurant Manager

    141111 CAFE OR RESTAURANT MANAGER

    Alternative Titles: Food and Beverage Manager

    Restaurateur

    Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.

    Fast Food Managers (Aus)/ Quick Service Restaurant Managers (NZ) are excluded from this occupation. Fast Food Managers (Aus) and Quick Service Restaurant Managers (NZ) are included in Occupation 142111 Retail Manager (General)

    Skill Level: 2

    Specialisations:

    Bistro Manager

    Canteen Manager
    Caterer
    Internet Cafe Manager

21. Specifically, ANZSCO indicates that the indicative skill level for the occupation of a ‘Cafe or Restaurant Manager’ (ANZSCO Code 141111) is an AQF Associate Diploma, Advanced Diploma or Diploma.

22. In this case, the applicant is aged approximately 30 years at the time of decision. Initially, the applicant submitted evidence of a ‘Diploma in Business Studies (Accounting)’[24] from the Tunku Abdul Rahman College in Kuala Lumpur, Malaysia, a ‘Bachelor of Business (Accountancy)’ [25] from RMIT University, and a ‘Master of Professional Accounting’[26] from Swinburne University. He also provided the Department with certificates for a ‘Food Safety Handler Level 1’[27], a ‘Food Safety Supervisor Level 2’[28] and for the ‘Responsible Service of Alcohol Program’.[29]

    [24]D1, f.91-92

    [25]D1, f.87-90

    [26]D1, f.83-86

    [27]D1, f.81

    [28]D1, f.82

    [29]

23. In addition, the applicant submitted his curriculum vitae[30], two work references from the Shark Fin Group attesting to his part-time employment as a manager at the Shark Fin Takeaway & Noodles Pty Ltd (both dated 30 October 2015[31]), payslips from this business for the period 1 January 2010 to 31 December 2013[32], a 2011 PAYG summary[33] from this business and income tax assessment notices for the 2012 to 2104 financial years.[34] 

    [30]D1, f.29-30

    [31]D1, f.1-2

    [32]T1, f.31-71

    [33]D1, f.72

    [34]D1, f.3-6

24. However, the delegate was not satisfied that this evidence demonstrated that the applicant had the skill level set by ANZSCO for a ‘Cafe or Restaurant Manager’.

25. Notably, in support of the application for review the applicant submitted evidence that he had been awarded a ‘Diploma of Hospitality’ from TAFE Queensland on 13 October 2016.[35] The Tribunal observes that TAFE Queensland has been a registered training organisation with training.gov.au since 1998, and that this continues to be the case at the time of decision.[36] This institution is also approved to deliver the ‘Diploma of Hospitality’ qualification in Queensland.[37] In addition, there is little in the other evidence before the Tribunal to suggest that the applicant’s qualification certificate or academic transcripts are anything other than genuine.  

    [35]T1, f.23-24

    [36]T1, f.66-68: See - Accessed 23 August 2017

    [37]    T1, f.69: See - Accessed 23 August 2017

26. As a result, the Tribunal finds that the applicant holds a diploma level qualification under the Australian Qualifications Framework. Therefore, it is also satisfied that the applicant possesses a qualification that meets the ANZSCO skill entry requirements for a ‘Cafe or Restaurant Manager’ at the time of decision, as required by paragraph 457.223(4)(da).

27. In considering the applicant’s skills for the purposes of this provision the Tribunal has taken into account what the Court said in Joshi v Minister for Immigration and Multicultural and Indigenous Affairs[38], namely, that the preferable approach is to ascertaining the applicant's skills and how these skills are to be applied in the nominated occupation. As a result, the Tribunal accepts that whether an applicant has the employment background necessary to perform the tasks of the nominated occupation will always be a question of fact and degree.

    [38][2005] FMCA 1116

28. In this case, in addition to the evidence the applicant submitted to the Department, the Tribunal has a work reference (dated 1 February 2017[39]) from New Life Development Pty Ltd confirming the applicant’s employment as a restaurant manager in this business since 7 December 2015. It also has a copy of the position description[40]  and employment contract executed by the applicant and this business on 16 January 2017[41], which identifies his role as ‘restaurant manager’.

    [39]T1, f.39

    [40]T1, f.40

    [41]T1, f.41-43

29. There are also payslips for the period 11 July 2016 to 6 February 2017[42], personal bank account statements confirming the payment of wages[43], a 2016 PAYG summary[44] and a 2016 income tax assessment notice[45]  to support the applicant’s claims to have worked as a restaurant manager for New Life Development Pty Ltd.

    [42]T1, f.29-36

    [43]T1, f27-28

    [44]T1, f.38

    [45]T1, f.37

1. As a consequence, having regard to the whole of the evidence before it, including the applicant’s Australian qualifications, employment history in Australia, employer references, payslips and bank account statements, the Tribunal is satisfied that the applicant has through his employment acquired skills and an employment background that are appropriate to performing the tasks associated with an ‘Cafe or Restaurant Manager’, as defined in ANZSCO Code 141111.

2. Accordingly, given the relevant case law and policy guidelines set out above, as well as the evidence before it, the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a ‘Cafe or Restaurant Manager’ (ANZSCO Code 141111).

3. Therefore, the Tribunal finds that the applicant meets the requirements of paragraph 457.223(4)(da) at the time of decision.

   The ‘Skills Necessary to Perform the Occupation’ Requirement - Paragraph 457.223(4)(e):

4. The Tribunal notes that paragraph 457.223(4)(e) provides that an applicant can be required to demonstrate that he/she has the skills and experience necessary to perform the nominated occupation in the manner specified by the Minister.

5. Although this is the case, the Regulations currently do not specify any particular manner in which these skills and experience are to be demonstrated. However, the relevant policy guidelines state the following in respect of this matter:

   4.7.7.   Skills assessments (Standard Business Sponsorships and Labour Agreements)

   4.7.7.1. Overview

   Under policy, there are situations in which officers are expected to request a formal skills assessment unless it is determined that certain exemptions apply. The sections below explain when this is required. Skills assessments apply to applicants for standard business sponsors and labour agreements.

   4.7.7.2. TRA 457 skills assessment available for occupation & passport country

   Under policy, if Trades Recognition Australia (TRA) supports the provision of a 457 Skills Assessment for the nominated occupation and passport country of the visa applicant, officers should require the applicant to demonstrate that they have the skills necessary to perform the nominated occupation, by completing such an assessment, in accordance with paragraph 457.223(2)(d) and 457.223(4)(e). A list of client cohorts for which a 457 skills assessment is available on 457/Pages/default.aspx">TRA’s website.

   If a visa applicant who fits within the client cohorts listed above does not provide the outcome of a mandatory skills assessment with their application, officers should formally request the visa applicant to provide this information unless one of the exemptions below applies:

   ·     currently hold a subclass 457 visa as a primary sponsored person and are currently employed in the nominated occupation in Australia;

   ·     hold the relevant Australian qualification (Certificate IV or above) for the nominated occupation and this qualification was gained by studying in Australia (i.e. the qualification was not obtained via Recognition of Prior Learning (RPL));

   ·     hold a relevant qualification that is commensurate with the level indicated in ANZSCO for the nominated occupation and was gained by studying in a country that would not be subject to a 457 Skills Assessment normally;

   ·     hold the relevant Australian licensing/registration for the nominated occupation;

   ·     seek to fill a nominated occupation that is an intra-company transfer and is currently employed in a similar occupation for the same company overseas; or

   ·     has already completed a TRA Offshore Skills Assessment Program (OSAP) (note: the 457 Skills Assessment and OSAP share the same assessment process).

   …

   [Tribunal emphasis]

6. According to the Trades Recognition Australia guidelines ‘457 Skills Assessment Program Applicant Guidelines’[46] the requirement for a skills assessment for a subclass 457 visa does not arise for an applicant who has applied for a subclass 457 visa as a ‘Cafe or Restaurant Manager’ and who also comes from Malaysia. 

   [46]    T1, f.70-71 See: - Accessed 23 August 2017

7. Consequently, there is no requirement by Trades Recognition Australia for an applicant for a subclass 457 visa from Malaysia to undertake a skills assessment for the nominated occupation of a ‘Cafe or Restaurant Manager’. The Tribunal therefore finds that there is no manner specified in the policy guidelines for the purposes of paragraph 457.223(4)(e).

8. In these circumstances, the Tribunal is therefore satisfied that the applicant has through his formal training and on-the-job work experience acquired skills relevant to the majority of the tasks listed in ANZSCO Code 141111 for a ‘Cafe or Restaurant Manager’.

9. In addition, as there is no manner specified by the Minister for the applicant to demonstrate that he has the skills necessary to perform the nominated occupation of ‘Cafe or Restaurant Manager’, the Tribunal further finds that the applicant meets the requirements of paragraph 457.223(4)(e).

   CONCLUSION

10. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

11. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·Paragraph 457.223(4)(da); and

    ·Paragraph 457.223(4)(e) of Schedule 2 to the Regulations.

    Danica Buljan
    Member

    
    

    ATTACHMENT - CLAUSE 457.223 (extract)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

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

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.