BONGIORNO HAWKINS & ASSOCIATES PTY LTD (Migration)

[2020] AATA 3997

BONGIORNO HAWKINS & ASSOCIATES PTY LTD (Migration) [2020] AATA 3997 (11 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bongiorno Hawkins & Associates Pty Ltd

CASE NUMBER:  1731756

HOME AFFAIRS REFERENCE(S):          BCC2017/2717996

MEMBER:Katie Malyon

DATE:11 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 September 2020 at 4:33pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Architectural Draftsperson – representative’s failure to respond to s.359(2) invitation – not entitled to appear before the Tribunal – witness in relation to nominee’s hearing – financial capacity to maintain term of employment – significantly more information before the Tribunal – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40

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 11 December 2017 to refuse the application made by Bongiorno Hawkins & Associates Pty Ltd (the Company) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The Company applied for approval on 31 July 2017. Requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains 2 alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)); and, a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets all the requirements of either stream, then the application must be approved.  If any of the requirements are not met, then the application must be refused: r.5.19(5) of the Regulations.

3. In this case, the Company has applied for approval of a nomination seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.  The Company nominated the position of Architectural Draftsperson ANZSCO 312111 for nominee, Mr Jacopo Baldini. 

4. The delegate refused the application on the basis the Company’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because, having regard to documentation lodged in support of the nomination application, the delegate was not satisfied that the Company had demonstrated it had the financial capacity to be able to pay the full-time salary to the nominee for at least 2 years. In particular, the delegate referred to the fact that the Company made a net loss of $19,733 in the financial year ended 30 June 2017 but had not provided any letter from its Accountant attesting to the financial position of the business and its capacity to meet all obligations in regards to employing the nominee for a period of at least 2 years. A copy of the delegate’s decision was provided to the Tribunal.

5. The Company operates a building design business employing 7 people in Sydney’s inner-west and has been owned and operated by the Company’s Director Mr Natalino Bongiorno for the past 16 years.  Prior to acquiring the business in 2004, Mr Bongiorno worked with the previous business owner, Mr Frassetto, who established the business in 1989.  The business services clients across a range of sectors including residential, industrial and commercial.  It also undertakes interior design and 3D imaging/graphics. 

6. Some documentation was lodged with the Tribunal in support of the Company’s review application. However, on 15 June 2020, the Tribunal wrote to the Company pursuant to s.359(2) of the Act and invited it to provide information to enable it to assess whether the Company meets all the requirements for approval of the nomination including, relevantly:

   ·Financial Reports prepared in accordance with Australian Accounting Standards including Profit & Loss Statements and Balance Sheets for the most recent 2 financial years;

   ·Tax Returns as lodged with the Australian Taxation Office (ATO) for the last 2 financial years;

   ·a copy of the contract of employment or letter of engagement with the nominee which complies with relevant awards; and,

   ·PAYG Payment Summaries provided to the nominee together with associated Notices of Assessment issued by the ATO.

7. The Tribunal’s invitation letter was sent to the address provided by the representative assisting the Company with the review. The Company was advised that, if the information was not provided in writing by 29 June 2020 or if the Company has not made a request on or before then for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information and, further, the Company would lose any entitlement it might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

8. On 29 June 2020, the Company’s representative requested an extension of time to respond to the Tribunal’s s.359(2) letter. The Tribunal acknowledged the representative’s request on behalf of his client and, on 29 June 2020, it granted an extension of time until 27 July 2020 to provide information requested. In its letter confirming the extension of time to respond, the Tribunal advised that if information was not received within the period allowed or as extended, it reiterated it may make a decision on the review without taking any further action to obtain information. Further, it advised the Company would lose any entitlement it might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

9. No documentation was received in response to the Tribunal’s s.359(2) within the extended period of time. On 18 August 2020, the Tribunal attempted to contact the representative but was unsuccessful. It did, however, speak with Mr Bongiorno.

10. On 19 August 2020, the Company informed the Tribunal that it had terminated its former representative’s appointment due to his failure to respond to its many attempts to communicate with him.  It also provided copies of documentation which the Company had submitted to its representative prior to 27 July 2020 (that is, before the extended date afforded by the Tribunal for submitting information requested).  The Tribunal observes that signed documentation provided by the Company was dated 22 July 2020: this substantiates Mr Bongiorno’s advice that Company documentation had been given to its then representative prior to the due date for lodgement with the Tribunal.  Subsequently, Mr Bongiorno provided evidence of his multiple unsuccessful attempts in SMS messages to contact the Company’s representative by email in the period 16 – 24 July 2020.

11. The Tribunal wrote to the Company on 19 August 2020 and stated that, as the representative did not respond within the prescribed period, the Company is not entitled to appear before the Tribunal. This is consistent with s.360(3) of the Act. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40. In its letter, the Tribunal advised the Company that it may now make a decision in its case at any time and encouraged the Company to forward as soon as possible any additional information that it wished the Tribunal to consider. On 28 August 2020, the Company provided further copies of all documentation it had previously provided to its representative as well as additional information.

12. Mr Bongiorno appeared before the Tribunal by way of videoconference for an interview on 11 September 2020. The Tribunal explained to Mr Bongiorno that the Company had lost its right to a hearing as it did not respond to the Tribunal’s s.359(2) letter by 27 July 2020 but that, as he had been called as a witness in the Tribunal’s hearing of refusal of Mr Baldini’s Subclass 186 visa application (Matter No. 1803363), the Tribunal would instead conduct an interview with him pursuant to s.359 of the Act. It explained that, in the circumstances, Mr Bongiorno does not have a right to give evidence and present arguments on behalf of the Company in relation to the issues arising on review: however, the Tribunal would consider any information provided during the interview.

13. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.  The Tribunal acknowledges that it has significantly more information than that which was available to the delegate at the time of refusal of the Company’s nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3) of the Regulations which is extracted in the Attachment to this decision.  For the nomination to be approved, all the requirements must be met.

    The application must be compliant: r.5.19(3)(a)

15. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, be accompanied by the prescribed fee and, where applicable, include the required written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958 (the Act).  The application must also identify a relevant person and occupation as well as identify a need to employ the person. 

16. On the basis of information in the Department’s file, the Tribunal is satisfied that the application was made using the relevant on-line form and was accompanied by the prescribed fee. The relevant certification under s.245AR(1) of the Act was provided in the application form as was the relevant identification of a genuine need to employ the nominee, as a paid employee, to work in the nominated position under the Company’s control.

17. The application for approval identifies Jacopo Baldini as nominee. Based on Departmental records, Mr Baldini holds a Subclass 457 visa valid for 2 years from 24 July 2015 which was granted to him on the basis of satisfying cl.457.223(4) of Schedule 2 to the Regulations. The occupation identified is ANSZCO 312111 Architectural Draftsperson and, relevantly, this is the same occupation which was carried out by him as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same 4-digit code (3121) as the occupation carried out by the nominee whilst he held a Subclass 457 visa.

18. Given the above findings, the requirement in r.5.19(3)(a) of the Regulations is met.

    Status of the nominator: r.5.19(3)(b)

19. Regulation 5.19(3)(b) requires the nominator to be, or have been, the standard business sponsor who last identified the holder of a Subclass 457 visa in a nomination made under s.140GB of the Act, and be actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas in the most recent sponsorship approval.

20. Departmental records confirm that the Company was the standard business sponsor which last identified Mr Baldini in a nomination made under s.140GB of the Act. The Department’s records also confirm that the Company was not granted its most recent business sponsorship on the basis of meeting r.1.20DA, r.2.59(h) or r.2.68(i) of the Regulations.

21. The Company has provided the Tribunal with various documents to confirm that it is actively and lawfully operating a business in Australia including:

    ·historical ASIC search;

    ·all Business Activity Statements (BAS) for the period 1 July 2018 - 30 June 2020 as lodged with the ATO using the business portal; and,

    ·signed Financial Reports for years ended 30 June 2018, 30 June 2019 and 30 June 2020;

    ·Tax Returns as lodged with the ATO for years ended 30 June 2018 and 30 June 2019; and,

    ·letter from the Company’s Accountant, Ms Constantina Malaxos IPA, of Accounting Alliances Australia dated 22 July 2020.  

22. The Tribunal is satisfied that documentation provided confirms the Company is actively and lawfully operating a business in Australia. Given the above, the requirement in r.5.19(3)(b) of the Regulations is met.

    Previous employment of the nominee: r.5.19(3)(c)

23. Broadly speaking, to meet the requirement in r.5.19(3)(c), either the nominee must:

    ·have been employed full-time in Australia in the position for which s/he holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or,

    ·hold a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the nomination application.

24. Departmental records confirm Mr Baldini was granted a Subclass 457 visa on 24 July 2015 on the basis of being nominated by the Company for the position of Architectural Draftsperson.  Since that time, the Company has employed him on a full-time basis in that role at its office in Concord.  The Company has provided PAYG Payment Summaries for Mr Baldini for years ended 30 June 2017 ($66,989), 30 June 2018 ($71,392), 30 June 2019 ($71,160) and 30 June 2020 ($86,634) as well as related Notices of Assessment issued by the ATO.  The Tribunal has also considered the duties performed to date by Mr Baldini as confirmed in a signed statement from Mr Bongiorno dated 22 July 2020.

25. Having regard to evidence provided, the Tribunal is satisfied that nominee Mr Baldini has been employed full-time in the position of Architectural Draftsperson in Australia as the holder of a Subclass 457 visa for at least 2 years in the 3 year period immediately before the nomination application was lodged on 31 July 2017.

26. Given the above findings, the requirement in r.5.19(3)(c) of the Regulations is met.

    Future employment of the visa holder: r.5.19(3)(d)

27. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i) of the Regulations). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

28. As noted above, the delegate refused the nomination due to loss of $19,733 in the year ended 30 June 2017 and the absence of a report from the Company’s Accountant attesting to the financial position of the business and its capacity to meet obligations in relation to employing the nominee for a period of at least 2 years.

29. The Company has provided the Tribunal with evidence of its financial viability with the documentation referred to above at para [21]. Its recent financial performance is set out in the Table below:

    Table - Financial Performance 1 July 2017 – 30 June 2020

Year ended 30 June	Income	Payroll (wages, salary, bonuses, subcontractor fees, superannuation)	Other operating expenses	Net Profit / (Loss)
2018	$810,175	$404,717	$322,767	$82,691
2019	$710,778	$479,194	$319,091	($87,509)
2020	$987,842	$510,067	$477,775	$35,420

1. In her letter of 22 July 2020, the Accountant has commented on the Company’s recent financial performance as set out in the Table above and explained its loss in the year ended 30 June 2019.  The Accountant observes the reported loss in the year ended 30 June 2019 can be explained as follows:

   1)increased costs for Subcontractors and Consultants were due to an unforeseen staff departure which required immediate replacement with a more expensive contractor thus causing an increase in Subcontractor payments.  This has since been mitigated by hiring of a new staff member in FY 2019/20 at a substantially lower rate.  The new staff hired incurred a once-off recruitment fee reflected in higher Consultants fees;

   2)the increase in Salaries can be explained as due to a number of staff being employed on a contractual basis.  This has since been rectified by offering full-time employment: the flow-on effect, even allowing for salary increases, has seen salary costs stabilise in FY2019/20; and,

   3)there was a once-off cost associated with sponsoring a new staff member.

2. In her professional opinion, the Accountant opines that the Company’s business is a going concern and will be able to continue covering its expenses, specifically the salary of nominee Mr Baldini, for the next 2 years.  The Company’s Director Mr Bongiorno has independently provided a statement confirming the contents of the Accountant’s opinion letter.  The Tribunal accepts the Accountant’s explanation for the Company’s loss in the year ended 30 June 2019 as confirmed by Mr Bongiorno.  The Tribunal notes that the Financial Report for the year ended 30 June 2020 confirms the Company received $18,000 in JobKeeper payments.  Mr Bongiorno told the Tribunal that the JobKeeper payment merely supplemented the salaries of 3 employees as it topped up salaries paid by the Company in one quarter only.  He added he does not expect the Company will even qualify for JobKeeper payments moving forwards as work has picked up and is now back on track. 

3. The Tribunal accepts that the Company returned to making a profit in the year ended 30 June 2020 and that, as a business which has provided building design, interior design and 3D imaging/graphics in Sydney’s inner-west for more than 30 years (since its original establishment in 1989 by Mr Frassetto) it will continue to operate profitably into the future.    

4. The signed Employment Agreement dated 1 July 2019 provides for Mr Baldini’s ongoing and permanent employment with the Company.  Director Mr Bongiorno in a statement dated 22 July 2020 confirms that Mr Baldini is an excellent employee who sees his future in Australia.  Mr Bongiorno provided a number of examples of Mr Baldini’s recognised contribution to the business as well as evidence that he is now a member of the Australian Institute of Architects.  He told the Tribunal that he expects Mr Baldini will be promoted to Senior Associate with the firm within the near future.   

5. Based on information provided, the Tribunal is satisfied that the Company will employ Mr Baldini on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending this period of employment.

6. Given the above findings, the requirement in r.5.19(3)(d) of the Regulations is met.

   No less favourable terms and conditions of employment: r.5.19(3)(e)

7. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

8. The signed Employment Agreement dated 1 July 2019 provided to the Tribunal indicates Mr Baldini’s base salary will be $85,000 per annum plus superannuation.  The contract also provides for salary reviews on an annual basis. Mr Baldini’s PAYG Payment Summaries (as well as his related Notices of Assessment issued by the ATO) have been lodged with the Tribunal in respect of years ended 30 June 2016 – 30 June 2020.  In addition, evidence has been provided of a recent payslip for Mr Baldini for the week ended 5 July 2020 confirming his annual salary is $85,000 per annum and an appropriate payment has been made to his Cbus Superannuation Account.  The PAYG Payment Summaries provided to the Tribunal referred to above at para [24] confirm that Mr Baldini’s salary has increased every year. 

9. There is one Australian performing equivalent work undertaken by the nominee at the Company’s office in Concord.  He worked for the firm for approximately 7 years but left in 2013 before returning in August 2018.  The Company has provided a copy of the other Architectural Draftsperson’s recent payslip which confirms his salary is $80,000 per annum plus superannuation.  As such, nominee Mr Baldini will be paid at a higher rate.  The Tribunal has also reviewed data from PayScale which indicates the salary range for the position of Architectural Draftsperson in Sydney as at that date of this decision is $49,000 - $79,000 with a median of salary of $60,621.[1] 

   [1] type="1">

10. On the basis of this information, the Tribunal is satisfied that the salary offered to Mr Baldini is at the top of the range of what is normally paid to an Architectural Draftsperson in Sydney with his level of experience.  The Tribunal accepts this is explained by his valued contribution to the business since he started work on a part-time basis in June 2012 and was then, subsequently, nominated for full-time work is the holder of a Subclass 457 visa.  Having reviewed the Employment Agreement, the Tribunal is also satisfied that the terms and conditions of Mr Baldini’s employment are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

11. Accordingly, the requirement in r.5.19(3)(e) of the Regulations is met.

    Training commitments and obligations: r.5.19(3)(f)

12. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

13. Departmental records confirm the Company’s most recent business sponsorship was approved on 22 January 2019 for a period of 5 years to 22 January 2024. 

14. Following commencement of the Migration Amendment (Skilling Australians Funds) Regulation 2018 (SAF Regulations) on 12 August 2018, a number of criteria relating to approval as a standard business sponsor are now no longer applicable. Relevantly, the former r.2.87B of the Regulations required an approved standard business sponsor to meet specified training benchmarks for each 12 month period of their sponsorship approval. However, that obligation was removed by the SAF Regulations. Rather, sponsors must now pay the applicable Skilling Australia Fund nomination training contribution charge (the SAF Levy): the SAF Levy is payable at the time an approved sponsor lodges a nomination application.  

15. Since the Company was most recently approved as a standard business sponsor on 22 January 2019 and, because it was not required to either demonstrate it had met any specified training commitments or commit to meet any training obligations for approval of its sponsorship application, the Tribunal finds that it is reasonable to disregard the requirements in r.5.19(3)(f) of the Regulations.

    No adverse information known to Immigration: r.5.19(3)(g)

16. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.1.13A and r.1.13B of the Regulations.

17. There is no information before the Tribunal to indicate that there is any adverse information known to the Department about the Company or a person associated with the Company.  In passing, the Tribunal notes that on 22 January 2019 the Department approved not only the Company’s most recent standard business sponsorship application for a period of 5 years but also its nomination of the position of Architect for an intending Subclass 482 visa applicant.  

18. Accordingly, the requirement in r.5.19(3)(g) of the Regulations is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

19. Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

20. There is no information before the Tribunal to suggest the Company does not have a satisfactory record of compliance with workplace relations laws.  

21. Accordingly, the requirement in r.5.19(3)(h) of the Regulations is met

    Genuine need to employ nominee: r.5.19(3)(i)

22. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, in the position under the nominator’s direct control.

23. Mr Bongiorno states in his signed statement dated 22 July 2020 that Mr Baldini has worked with the Company since 1 December 2012, initially, on a part-time basis and, since 24 July 2015, on a full-time basis as the holder of a Subclass 457 visa sponsored by the Company.  He observes that Mr Baldini has been an excellent employee who has contributed significantly to the Company over the years. 

24. The Tribunal notes that the Organisation Chart confirms that, in addition to employing 2 Building Designers (including Mr Bongiorno), the Company employs 2 Architects and 2 Architectural Draftspersons (including the nominee) as well as an Accounts/Administration Officer.  As such, Mr Baldini is part of a small specialised team.  ANZSCO states that an Architectural Draftsperson completes Architects’ concepts by preparing drawings and plans as well as liaising with builders and contractors.  As such, the Tribunal accepts that his ongoing role with a boutique well-established business specialising in building design for residential, industrial and commercial premises as well as interior design, 3D imaging and graphics is genuinely needed by the Company.

25. Based on available evidence, the Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Architectural Draftsperson under the nominator’s direct control. Accordingly, the requirement in r.5.19(3)(i) of the Regulations is met.

    Conclusion

26. Having regard to the cumulative findings above, the Tribunal is satisfied that the Company meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Katie Malyon

    
    Member

    ATTACHMENT  -  Extracts from the Migration Regulations 1994
    
    

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)     is made in accordance with subregulation (2); and

    (ii) identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and

    (iv)     identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)    is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)     both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:  

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)    all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)     the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)    the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)     the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)    it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

    oOOo