Caravan Parks of Australia Pty Ltd ATF CPOA Trust (Migration)

Caravan Parks of Australia Pty Ltd ATF CPOA Trust (Migration) [2020] AATA 3977 (31 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Caravan Parks of Australia Pty Ltd ATF CPOA Trust
CASE NUMBER:  1819467
HOME AFFAIRS REFERENCE(S):          BCC2017/2099238
MEMBER:Antonio Dronjic
DATE:31 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 August 2020 at 3:16pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Marketing Specialist – financial capacity to maintain term of employment – contract of employment – PAYG summary statements – financial records provided – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 June 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 14 June 2017. The 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 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. The nominating business is Caravan Parks of Australia Pty Ltd ATF CPOA Trust and the nominated occupation is marketing specialist (ANZSCO 252113).
The delegate refused the application on the basis the nominator did not satisfy r.5.19(3)(d)(i) because, based on the evidence before him or her, the delegate was not satisfied that the nominator had the financial capacity to employ the nominee on a full-time basis in the position for at least 2 years.
The applicant applied to the Tribunal on 4 July 2018 and with the application submitted a copy of the primary decision record.
On 30 March 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(3).
On 14 April 2020, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 3 August 2020, the Tribunal wrote to the applicant inviting it to provide specific documentary evidence.
On 12 August 2020, the applicant submitted requested documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
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), which is extracted in the attachment to this decision (Attachment C). For the nomination to be approved, all the requirements must be met.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.
From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.
Therefore, it finds that r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is 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.
The Department’s records indicate that the applicant was approved as a standard business sponsor between 1 April 2015 and 31 March 2018 and again from 25 May 2019 to 25 May 2024. The Tribunal is satisfied that the company was the standard business sponsor which last identified the nominee, Ms Carla Prat Martin, and nominated her for a Subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.
In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided and the evidence of its current ABN and ASIC registrations that the applicant is actively and lawfully operating a business in Australia.
Given the above, the Tribunal finds that the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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 he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
·the nominee holds 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 application.
The Tribunal has reviewed the occupations specified in the relevant instrument for the purposes of the second dot point above and is satisfied that the nominated occupation of a marketing specialist is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.
The Tribunal is satisfied on the evidence before it that:
·The nomination was made on 14 June 2017;
·The relevant 3-year period is therefore 14 June 2014 to 14 June 2017;
·The nominee was granted a Subclass 457 visa on 20 April 2015, which was valid until 20 April 2019; and
·The nominee commenced her full-time employment at the nominating business on 20 April 2015 and continued to work there until the present time, with the break between 20 April 2019 and 3 July 2019 occasioned by the expiration of the nominee’s Subclass 457 visa; and
·She had therefore worked for the applicant in the nominated position as the holder of a Subclass 457 visa for more than 2 years in the 3-year period immediately prior to the nomination application being lodged.
Accordingly, given the above, and PAYG summary statements for the nominee provided to the Department and the Tribunal, the Tribunal is satisfied that the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). 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.
The applicant provided the Tribunal with a copy of an offer of employment between the applicant and the nominee dated 11 June 2019 and schedule to this agreement signed on 6 March 2020, which states, among other things, that the employment was offered for a period of no less than 2 years from the date of a Subclass 186 visa grant. The nominee’s annual salary is set at $110,000, excluding superannuation.
The Tribunal is satisfied, based on the offer of employment referred to, that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment further (with, notably, the nominee’s employment still now continuing with the applicant more than 3 years after the nomination application).
According to financial records provided by the applicant, in the financial year ending 30 June 2019, the applicant’s turnover was in excess of $11.355 million. The net profit in the 2018/19 financial year was over $400,000. Similarly, in in the financial year ending 30 June 2020, the applicant’s turnover was in excess of $11.728 million. The net profit in the 2019/20 financial year was over $610,000.
In his letter of 18 June 2019, Mr Mill, the nominee’s accountant, stated that that the trading entity known as Caravan Parks of Australia Pty Ltd as trustee for CPOA Trust (CPOA) is a profitable and successful standalone entity, and as such has the financial capacity to support the role of Ms Carla Prat Martin. He further wrote in his letter that the turnover of the business has increased by between 7% and 9% per annum.
In his letter of 28 February 2020, Mr Mill reiterated that, in his professional opinion, the nominator is financially capable of meeting its financial responsibilities including payment of the nominated salary for at least the next 2 years.
In her submissions of 14 April 2020, the applicant’s representative stated that CPOA is a company which operates 6 other businesses around Australia, engaged in providing short and long-term accommodation to tourists and tenants. The nominator began operations in Melbourne in 2012 and has expanded to employ over 50 people in the past 7 years. The company has an enterprise value of over $80 million and operates within a complex trust structure set up by its founder, Arnan Rouse.
In his letter of 5 August 2020, Mr Barry Heib, general manager of the nominating business, stated that, despite the current trading restriction imposed by the Government related to the COVID-19 pandemic, the nominator continues to operate a profitable business. All 7 parks are open, and a significant part of the nominator’s business is providing accommodation to 800 permanent residents who are predominantly receiving government support payments. He further stated that 29 employees are currently receiving JobKeeper payments.
Based on the documentary evidence provided on behalf of the applicant, including the applicant’s most recent contract of employment, PAYG summary statements to date and the applicant’s financial information, the Tribunal is satisfied that the nominee will continue to be employed on a full-time basis for at least 2 years, and that the terms and conditions of his employment do not expressly exclude the possibility of extending his period of employment.
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
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.
The applicant submitted that no other employee performs equivalent work at an equivalent location. The terms and conditions attaching to the role are determined based on reference to JobOutlook, Payscale and Seek advertisements. Based on the documentary evidence provided to the Department with the nomination application, the Tribunal is satisfied that the market salary rate for this role is between $65,000-$85,000 plus superannuation. The role with CPOA attracts a salary of $110,000 plus superannuation, which is the salary at or above market rate.
Having regard to the market salary research conducted by the nominator, the Tribunal is satisfied that the conditions 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.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
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.
The Tribunal finds that the applicant’s most recent approval as a standard business sponsor (as in force as at the time that this nomination was made) ran between 1 April 2015 and 1 April 2018.
The training requirements applicable for an established business with approval as a standard business sponsor in that period were set out in written instrument IMMI 13/030, as follows:
A) Recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
B) Recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
According to the Department’s Procedures Advice Manual (PAM3), a standard business sponsorship (SBS) holder is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1]
[1] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Similarly, r.2.87B requires standard business sponsors (and former standard business sponsors) to contribute to the training of Australian workers in each year they engage a 457 visa holder.
According to the explanatory statement relevant to the legislative instrument IMMI 13/030 (the Instrument), an SBS holder is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder.
From the material provided to the Department and the Tribunal, the Tribunal accepts that the applicant seeks to meet Training Benchmark B. The Tribunal has assessed the most recent information provided on this basis.
The applicant’s representative submitted that the nominating business was required to meet its training expenditure obligations during the period from 1 April 2015 to 31 March 2018. Relying on documentary evidence provided to the Department, it was submitted that the CPOA meets Training Benchmark B as follows:
·From 1 April 2015 to 31 March 2016, CPOA wages were $1,971,072. The 1% of total payroll is $19,710 and the training expenditure was $51,504;
·From 1 April 2016 to 31 March 2017, CPOA wages were $2,066,143. The 1% of total payroll is $20,661 and the training expenditure was $66,262; and
·From 1 April 2017 to 31 March 2018, CPOA wages were $2,371,796. The 1% of total payroll is $23,717 and the training expenditure was $36,131.
The Tribunal examined the applicant’s financial statements from 1 July 2014 to 30 June 2018.
The Tribunal finds that the total payroll as of 30 June 2015 was $1,541,303. Accordingly, 1% of payroll is $15,413. Based on the profit and loss statements for this financial year, the Tribunal is satisfied that the training expenditure as of 30 June 2015 was $100,064, which is in excess of 1% of the total payroll as required by the Instrument. The Tribunal is satisfied that the above payments are acceptable for the purposes of meeting Training Benchmark B as the training was provided to employees who are Australian citizens and Australian permanent residents and was related to the purpose of the business
The Tribunal finds that the total payroll as of 30 June 2016 was $1,889,565. Accordingly, 1% of payroll is $18,895. Based on the profit and loss statements for this financial year, the Tribunal is satisfied that the training expenditure as of 30 June 2016 was $158,634, which is in excess of 1% of the total payroll as required by the Instrument. The Tribunal is satisfied that the above payments are acceptable for the purposes of meeting Training Benchmark B as the training was provided to employees who are Australian citizens and Australian permanent residents and was related to the purpose of the business.
The Tribunal finds that the total payroll as of 30 June 2017 was $2,017,429. Accordingly, 1% of payroll is $20,174. Based on the profit and loss statements for this financial year, the Tribunal is satisfied that the training expenditure as of 30 June 2017 was $109,263, which is in excess of 1% of the total payroll as required by the Instrument. The Tribunal is satisfied that the above payments are acceptable for the purposes of meeting Training Benchmark B as the training was provided to employees who are Australian citizens and Australian permanent residents and was related to the purpose of the business.
The Tribunal finds that the total payroll as of 30 June 2018 was $2,498,187. Accordingly, 1% of payroll is $24,981. Based on the profit and loss statements for this financial year, the Tribunal is satisfied that the training expenditure as of 30 June 2018 was $72,400, which is in excess of 1% of the total payroll as required by the Instrument. The Tribunal is satisfied that the above payments are acceptable for the purposes of meeting Training Benchmark B as the training was provided to employees who are Australian citizens and Australian permanent residents and was related to the purpose of the business.
The applicant was most recently approved as a standard business sponsor on 25 May 2019 for a period of 5 years. The requirements at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant. The Tribunal further notes that the sponsorship obligation to provide training no longer applies. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.
Based on the evidence before it, the Tribunal is satisfied that the applicant complied with the applicable sponsorship obligations relating to the applicant’s training requirements during the period of the most recent sponsorship approval and has fulfilled commitments made relating to meeting the training requirements.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or 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 rr.1.13A and 1.13B.
There is nothing before the Tribunal to show any adverse information is known to the Department about the relevant business or anyone associated with it.
Accordingly, the Tribunal, on the evidence before it, is satisfied that the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
There is nothing in the Department’s records to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of the State of Victoria relating to workplace relations.

Accordingly, the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Antonio Dronjic
Member

ATTACHMENT A
Document list
·Employment contracts of:
oHarry Brazil
oBlake Pollard
oNoel Schwartz
oShannon Archer
oSharlene Pinnuck
oKelley Rutjens
oKenneth Pinnuck
oLeah Archer
oBelinda Van Dyck
oPeter Ozolins
oRobert Van Dyck
oRuth Ozlins
oCarol Bickley
oRonald Bickley
oBrad Caldow
oDavid Kelly
oDavid Webster
oDonna McCourt
oJulie Webster
oKatie Caldow
oLinda Carratello
oMary-Grace Greer
oStephen Remnant
oTony Greer
oDave Hindley
oDavid Dedman
oDavid Farrell
oJulie Hindley
oLauren Treloar
oStephen Treloar
oAndrew Rutjens
oJudy Schwartz
·Lease agreement between Private Equity Australia Pty Ltd ATF Strategic Investment Trust (Landlord) and Caravan Parks of Australia Pty Ltd ATF CPOA Trust (signed and dated 30/3/17)
·ASIC Certificate of Registration of a Company for ‘Caravan Parks of Australia Pty Ltd’ (17/6/2011)
·Confirmation of registration on the Australian Business Register (25/10/2012)
·Extract of Caravan Parks of Australia website
·Organisation/group chart
·Employee list
·Correspondence from Barry Heib (General Manager, Caravan Parks of Australia Pty Ltd) to Samantha Smith (WLW Migration Lawyers) (9/4/2020)
·Extract from ASIC for ‘Caravan Parks of Australia Pty Ltd’
·ASIC Record of Registration for Business Name for:
oCarrum Downs Holiday Park (record of registration issued on 17/9/2018)
oChelsea Holiday Park (record of registration issued on 17/9/2018)
oFrankston Holiday Park (record of registration issued on 17/9/2018)
oSwan Bay Holiday Park (record of registration issued on 06/03/2018)
oSwan Reach Holiday Park (record of registration issued on 06/06/2018)
oTime Out Holiday Park (record of registration issued on 26/02/2018)
oSelect Motels (record of registration issued on 21/02/2018)
oCarrum Downs Motel (record of registration issued on 21/02/2018)
oSandhust Motel (record of registration issued on 21/02/2018)
·Notification of approval as a Temporary Business Entry Standard Business Sponsorship – Aus Business to Caravan Parks of Australia Pty Ltd ATF COPA Trust (7/4/2015)
·Notification of approval as a standard business sponsor for Caravan Parks of Australia Pty Ltd ATF CPOA Trust (25/05/2019)
·Submission from WLW Migration Lawyers to the Administrative Appeals Tribunal (14/4/2020)
·PAYG payment summary of Carla Prat-Martin for the year ending 30 June 2017
·Notice of assessment – year ended 30 June 2018 for Carla Prat Martin (31/8/2018)
·PAYG payment summary of Carla Prat-Martin for the year ending 30 June 2018
·Notice of assessment – year ended 30 June 2019 for Carla Prat Martin (27/8/2019)
·Income statements of the financial year 2018-19 for Carla Prat Martin
·Notice of assessment – year ended 30 June 2015 for Carla Prat Martin (28/9/2015)
·PAYG payment summary of Carla Prat-Martin for the year ending 30 June 2015
·Notice of assessment – year ended 30 June 2016 for Carla Prat Martin (29/7/2016)
·PAYG payment summary of Carla Prat-Martin for the year ending 30 June 2016
·Notice of assessment – year ended 30 June 2017 for Carla Prat Martin (11/8/2017)
·Letter from Barry Heib (General Manger, Caravan Parks of Australia, Terra Firma Holdings, Part of the Rouse Group of Companies) to the Department of Home Affairs, regarding ‘Recruitment efforts for the role of Marking [sic] Specialist and its importance to our company’ (7/6/2019)
·Notification of grant of a Temporary Work(Skilled) (subclass 457) visa to Carla Prat Martin (20/4/2015)
·Job description of ‘Marketing Specialist’ at Caravan Parks of Australia Pty Ltd
·Full Time (Award) Employment Contract between Caravan Parks of Australia Pty Ltd and Carla Prat Martin (signed and dated 11/6/2019 – 12/6/2019)
·‘Schedule 2’ (signed and dated 6/3/2020)
·Employment reference letter from Barry Heib (General Manager) for Carla Prat Martin (2/3/2020)
·Advertisement: “Caravan Parks for the adventurous’
·Email correspondence between Sophie Oakes and Carla Prat – Martin (31/05/2018)
·Email of Frankston Park – Executive Summary sent to Carla Prat – Martin (12/09/2018)
·Screenshots of social media posts of Caravan Parks of Australia
·Email correspondence between Carla Prat-Martin and [email protected] regarding ‘Artwork – Greater Hume Visitor Guide’ (3/4/2020)
·Invoice from Carsales to Caravan Parks of Australia
·‘With Compliments’ slip from:
oCaravan Parks of Australia
oFrankston Holiday Park
oCarrum Downs Holiday Park
oTime Out Holiday Park
oChelsea Holiday Park
·Documents containing a list of ‘Promotions’ including promotional offers, products, and ‘create and account’ link
·Swan Bay Attraction Content
·Advertisement: Caravan Parks of Australia
·Email from [email protected] to Carla Prat-Martin regarding ‘TURU Invoice INV – 4949 from Adventures Group Holdings Pty Ltd for CPOA Caravan Parks of Australia (13/6/2017)
·Email from [email protected] to Carla Prat-Martin, regarding ‘Dometic Follow the Sun’ (27 September 2016)
·Trust – Annual Accounts for the year ended 30 June 2018 for CPoA Trust
·Caravan Parks of Australia Pty Ltd As Trustee for the CPoA Trust Financial Statements for the year ended 30 June 2015
·Caravan Parks of Australia Pty Ltd As Trustee for the CPoA Trust Financial Statements for the year ended 30 June 2016
·Caravan Parks of Australia Pty Ltd As Trustee for the CPoA Trust Financial Statements for the year ended 30 June 2017
·Trust tax return 2017
·Letter from Andrew Mill (BCA Accountant and Financial Planners) regarding ‘Letter of Support for Caravan Parks of Australia ATF CPoA Trust’ (28/2/2020)
·Business Activity Statement for The Trustee for CPOA Trust for the periods:
oOctober 2018
oNovember 2018
oDecember 2018
oJanuary 2019
oFebruary 2019
oMarch 2019
·Trust tax return 2018
·Letter from Andrew Mill (BCA Accountant and Financial Planners) regarding ‘Caravan Parks of Australia ATF CPoA Trust Carla Prat Martin’. The letter also includes trading results from 2014 - 2018 (28/2/2020).
·Activity Statement 001 – Transactions from 1 July 2014 – 4 March 2020 for The Trustee for CPOA Trust
·Employment contracts of:
oSoniya Pollard
oTony Greer
oBelinda Van Dyck
oRobert Van Dyck
oSara Gill
oTravis Gill
oSara Gill
oTravis Gill
oChris Gallie
oPaul Fosdick
oLauren Treloar
oStephen Mooney
oStephen Treloar
oAnna Dodds
oDavid Kelly
oBrad Pollard
oMary-Grace Greer
oDonna McCourt
oGary Dodds
·Trust – Annual Accounts CPoA Trust for the year ended 30 June 2019
·Payroll calculations 01/04/17-31/3/18 and 1/4/18-30/6/18
ATTACHMENT B
Document list
·Submission from WLW Migration Lawyers to the Administrative Appeals Tribunal (12/8/2020)
·Income Statements for the financial year 2019-20 for Carla Prat Martin
·Correspondence from Barry Heib (General Manager, Caravan Parks of Australia) to Samantha Smith (WLW Migration Lawyers) regarding ‘Carla Pratt Martin’ (5/8/2020)
·Activity Statements The Trustee for CPOA Trust for the periods:
oApril 2020
oFebruary 2020
oJanuary 2020
oJune 2020
oMarch 2020
oMay 2020
o
·Caravan Parks of Australia CPoA Group Financials Reports, results for the month ended June 2020.
ATTACHMENT C - 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
(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.

[2020] AATA 3977

31 August 2020

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Immigration

Administrative Law

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