EMMARIO PTY LTD (Migration)

EMMARIO PTY LTD (Migration) [2020] AATA 3906 (22 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  EMMARIO PTY LTD
CASE NUMBER:  1807802
HOME AFFAIRS REFERENCE(S):          BCC2017/1415434
MEMBER:Antonio Dronjic
DATE:22 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 September 2020 at 1:51pm
CATCHWORDS

MIGRATION – nomination of position – temporary residence transition stream – training benchmark – change to training requirements – no requirements at time of most recent approval as standard business sponsor – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), rr 2.87B(2), (3), 5.19(3)(f), Schedule 13, cl 7602(5)
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 21 March 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 18 April 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 nominator in this matter is Emmario Pty Ltd which operates 4 restaurants in Illawarra Region, including Moon’s fresh Sushi restaurant in Nowra where the nominee, Ms Boyoung Yoon, was nominated for the position of cook.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the nominator has failed to demonstrate they have met either Training Benchmark A or B, in each relevant year of their most recently approved standard business sponsorship.
The applicant applied to the Tribunal on 22 March 2018 for review of the delegate’s decision and with the application submitted a copy of the primary decision.
On 11 April 2018, the applicant’s representative provided legal submissions addressing the training benchmark requirements. The list of documents submitted to the Tribunal on 11 April 2018, 28 May 2018 and 9 December 2018 is attached to this decision record as Attachment A.
On 16 September 2019 and 29 July 2020, the applicant submitted additional documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
On 10 August 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 22 August 2020, the applicant’s representative responded to the Tribunal invitation. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.
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 Attachment D. 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 initially approved as a standard business sponsor (SBS) between 20 December 2016 and 20 December 2021. With its review application, the applicant provided a copy of the Department’s SBS approval letter evidencing that the most recent SBS approval runs between 21 June 2019 and 21 June 2024.
The Tribunal is satisfied that the company is the standard business sponsor who last identified the nominee, Ms Yoon, 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 business name 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 cook worker 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 18 April 2017;
·the relevant 3-year period is therefore 18 April 2014 to 18 April 2017;
·the nominee was granted a Subclass 457 visa on 21 February 2015, which was valid until 21 February 2019;
·the nominee commenced her employment at the nominating business on 29 March 2015 and continued to work there as a full-time cook until the present time; 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 Department and the Tribunal with a copy of an employment agreement between the applicant and the nominee signed on 14 April 2017, 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 annual salary was to be $55,000, excluding superannuation.
The Tribunal is satisfied, based on the employment agreement 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 over 3 years after the nomination application).
The Tribunal considered whether the business has a financial capacity to provide full-time employment to the nominee for a minimum of 2 years.
Based on the financial documents submitted with the review application, the Tribunal finds that the nominator’s turnover in the 2019/20 financial year was $1,805,906. During the same financial year, the nominator’s net profit was $214,356.
Based on the documentary evidence provided on behalf of the applicant, including the applicant’s contract of employment, the nominee’s PAYG summary statements to date, and the applicant’s financial information, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least 2 years, and that the terms and conditions of her employment do not expressly exclude the possibility of extending her 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 nominee’s contract of employment for the nominated position is dated 14 April 2017 and provides that the nominee’s salary is $55,000 per year plus superannuation.
With its application to the Department, the applicant submitted evidence of market salary rates for cooks gathered from Job Outlook, Pay Scale and Seek.com databases.
From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid.
The Tribunal is further satisfied that the contract of employment dated 14 April 2017 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Cth) and National Employment Standards (NES).
Accordingly, the Tribunal is satisfied that 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 (emphasis added by the Tribunal). These requirements may be disregarded if it is reasonable to do so.
However, the nominator is not required to comply with training obligations in r.2.87B(2) or (3) of the Regulations in relation to a period of 12 months ending on or after 12 August 2018: cl.7602(5) of Schedule 13 to the Regulations.
While the Tribunal acknowledges that the applicant provided extensive submissions and documentary evidence concerning the training requirements related to the period of the previous SBS approval, the applicant was most recently approved as a standard business sponsor on 21 June 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.
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 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 before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to industrial 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
1.On 11 April 2018 the applicant provided the following documentation:
·Cover letter/submission from Garry WHS Seo (Garry Seo and Associates) (10/4/2018)
·Letter from Kumne Seo (Public Accountant, Ko Tax Solutions) (9/4/2018)
·Receipt from Royal Kingdom International Pty Ltd to Emmario Pty Ltd T/As Moon’s Fresh Sushi (29/3/2018)
·Invoice from Royal Kingdom International Pty Ltd to Emmario Pty Ltd T/As Moon’s Fresh Sushi (24/2/2018)
·Training Plan from Royal Kingdom International (24/2/2018)
·Notification of approval as a Temporary Business Entry Standard Business Sponsorship – Aus Business (20/12/206)
·Letter from Mr Hee Tak An (Emmario Pty Ltd) (9/4/2018)
2.On 28 May 2018 the applicant provided the following documentation:
·Cover letter/submission from Garry WHS Seo (Garry Seo and Associates) (28/5/2018)
3.On 9 December 2018 the applicant provided the following documentation:
·Cover letter/submission from Garry WHS Seo (Garry Seo and Associates) (9/12/2018)
·Financial slip/summary for YoHan Jeon
·Letter from Kumne Seo (Public Accountant, Ko Tax Solutions) (6/12/2018)
·Receipt from Royal Kingdom International Pty Ltd to Emmario Pty Ltd T/As Moon’s Fresh Sushi (5/11/2018)
·Invoice from Royal Kingdom International Pty Ltd to Emmario Pty Ltd T/As Moon’s Fresh Sushi (30/10/2018)
·Training Plan from Royal Kingdom International (30/10/2018)
ATTACHMENT B - DOCUMENT LIST
1.On 16 September 2019 the applicant provided the following documentation:
·Cover letter/submission from Garry WH Seo (Garry Seo and Associates) (17/9/2019)
·Letter from Kumne Seo (Ko Tax Solutions) (11/5/2019)
·Training Plan from Royal Kingdom International (11/5/2019)
·Invoice from Royal Kingdom International to Emmario Pty Ltd T/As Moon’s Fresh Sushi (11/5/2019)
·Receipt from Royal Kingdom International to Emmario Pty Ltd T/As Moon’s Fresh Sushi (15/5/2019)
·Notification of approval as a standard business sponsor (21/6/2019)
·Financial Statements for the year ended 30 June 2018 for Emmario Pty Ltd
·Activity statement for Emmario Pty Ltd for the periods:
oApril 2019 – June 2019
oJanuary 2019 – March 2019
oOctober 2018 – December 2018
oJuly 2018 – September 2018
·PAYG payment summary for the year ending 30 June 2019 for Boyoung Yoon
·Letter from Kumne Seo (Public Accountant, Ko Tax Solutions) (20/1/2018)
·Letter from AMP to Ms Bo Young Toon (3/8/2017)
·Letter from AMP to Ms Bo Young Toon (5/8/2016)
·Superannuation guarantee charge statement – quarterly, for the quarter ended 30/6/2015 for Emmario Pty Ltd trading as Moon’s Fresh Sushi
·Screenshot of payment from Westpac Business One (description: Emmario) to Tax Office Payments
2.On 29 July 2020 the applicant provided the following documentation:
·Cover letter/submission from Garry WH Seo (Garry Seo and Associates) (29/7/2020)
·Letter from Mr Hee Tak An (Director, Moon’s Fresh Sushi) (29/7/2020)
·Medical certificate from Dr John Won for Mrs Boyoung Yoon (12/7/2020)
ATTACHMENT C - DOCUMENT LIST
1.On 22 August 2020 the applicant provided the following documentation:
·Cover letter/submission from Garry WH Seo (Garry Seo and Associates) (21/8/2020)
·SAI Global extracts for Emmario Pty Ltd (the extract contains information derived from ASIC
·BAS for the periods from July 2018 to June 2020
·Taxation estimate for the year ended 30 June 2020 for Emmario Pty Ltd (date prepared 18/8/2020), and amended Company tax return 2020 for Emmario Pty Ltd
·Taxation estimate for the year ended 30 June 2019 for Emmario Pty Ltd (date prepared 18/8/2020), and amended Company tax return 2029 for Emmario Pty Ltd
·Financial statements for the year ended 30 June 2020 for Emmario Pty Ltd
·Financial statements for the year ended 30 June 2019 for Emmario Pty Ltd
·Organisation chart
·Statement of duties from Moon’s Fresh Sushi for ‘Cook (ANZSCO: 351411)’
·Letter from Mr Hee Tak An (Director, Moon’s Fresh Sushi) (20/8/2020)
·Moon’s Fresh Sushi menu
·Photographs (x6) of the business
·Employment contract between Emmario Pty Ltd and Ms Boyoung Yoon
·PAYG payment summary for the year ending 30 June 2018 for Boyoung Yoon
·Notice of assessment for the year ended 30 June 2018 for Boyoung Yoon
·PAYG payment summary for the year ended 30 June 2019 for Boyoung Yoon
·Notice of amended assessment for the year ended 30 June 2019 for Boyoung Yoon
·PAYG payment summary for the year ending 30 June 2020 for Boyoung Yoon
·Notice of assessment of the year ended 30 June 2020 for Boyoung Yoon
·Cover letter/submission from Garry Seo (Garry Seo and Associates) (21/8/2020)
·Notification of approval as a Temporary Business Entry Standard Business Sponsorship – Aust Business (20/12/2016)
·Notification of approval as a standard business sponsor (21/6/2019)
·Emmario Pty Ltd Payroll Activity Summary (20/12/2016 – 19/12/2017)
·Receipt from Royal Kingdom International Pty Ltd to Emmario Pty Ltd T/As Moon’s Fresh Sushi (29/3/2018)
·Invoice from Royal Kingdom International Pty Ltd to Emmario Pty Ltd T/As Moon’s Fresh Sushi (24/2/2018)
·Training Plan from Royal Kingdom International (24/2/2018)
·Certificate of Completion awarded to Kayla Hungerford in ‘Defining and Achieving Professional Goals’ (completed 7/2018)
·Certificate of Completion awarded to Kayla Hungerford in ‘Interpersonal Communication’ (completed on 7/2018)
·Certificate of Completion awarded to Kayla Hungerford in ‘Discovering Your Strengths’ (completed on 7/2018)
·Certificate of Completion awarded to Ni Luh Paris Lasia in ‘Customer Service: Problem Solving and Troubleshooting’ (completed on 07/2018)
·Certificate of Completion awarded to Ni Luh Paris Lasia in ‘Communicating with Empathy’ (completed on 07/2018)
·Certificate of Completion awarded to Ni Luh Paris Lasia in ‘Building Resilience’ (completed on 07/2018)
·Certificate of Completion awarded to Harlie Rose Singleton in ‘Building Customer Loyalty’ (completed on 07/2018)
·Certificate of Completion awarded to Harlie Rose Singleton in ‘Overcoming Procrastination’ (completed on 07/2018)
·Certificate of Completion awarded to Harlie Rose Singleton in ‘Managing Customer Expectations for Frontline Employees’ (completed on 07/2018)
·PAYG payment summary for the year ending 30 June 2018 for Harlie Rose Singleton
·PAYG payment summary for the year ending 30 June 2018 for Kayla Hungerford
·PAYG payment summary for the year ending 30 June 2018 for Ni Luh Paris Lasia
·Commonwealth Statutory Declaration of Moon Ja Kim (signed on 21 August 2020)
·Receipt from Royal Kingdom International to Emmario Pty Ltd T/As Moon’s Fresh Sushi (17/7/2020)
·Receipt from Royal Kingdom International to Emmario Pty Ltd T/As Moon’s Fresh Sushi (5/11/2018)
·Receipt from Royal Kingdom International to Emmario Pty Ltd T/As Moon’s Fresh Sushi (15/5/2019)
·Invoice from Royal Kingdom International to Emmario Pty Ltd T/As Moon’s Fresh Sushi (15/7/2020)
·Invoice from Royal Kingdom International to Emmario Pty Ltd T/As Moon’s Fresh Sushi (30/10/2018)
·Invoice from Royal Kingdom International to Emmario Pty Ltd T/As Moon’s Fresh Sushi (11/5/2019)
·Certificate of Completion awarded to Talia Violet Learadi in ‘Effective Listening’ (completed on 08/2019)
·Certificate of Completion awarded to Harlie Rose Singleton in ‘Customer Service Leadership’ (completed on 06/2019)
·Certificate of Completion awarded to ‘Jai member [sic]’ in ‘Designing a Restaurant Menu’ (completed on 08/2019)
·Certificate of Completion awarded to Jai J in ‘Boosting Your Team’s Productivity’ (completed on 08/2019)
·Certificate of Completion awarded to Tippawan Kekarit in ‘Customer Service Mastery: Delight Every Customer’ (completed on 7/2020)
·Certificate of Completion awarded to Tippawan Kekarit in ‘Efficient Time Management’ (completed on 07/2020)
·Certificate of Completion awarded to Haesun Jeong in ‘Handling Workplace Change as an Employee’ (completed on 08/2020)
·Certificate of Completion awarded to Haesun Jeong in ‘Influencing Others’ (completed on 08/2020)
·Certificate of Completion awarded to Haesun Jeong in ‘Leading without Formal Authority’ (completed on 08/2020)
·Certificate of Completion awarded to Haesun Jeong in ‘Learning to Be Assertive’ (completed on 07/2020)
·Certificate of Completion awarded to Tippawan Kekarit in ‘Negotiation Skills’ (completed on 07/2020)
·Certificate of Completion awarded to Tippawan Kekarit in ‘Organization Communication’ (completed on 07/2020)
·Certificate of Completion awarded to Haesun Jeong in ‘Teamwork Foundations’ (completed on 08/2020)
·Certificate of Completion awarded to Tippawan Kekarit in ‘Transitioning from Manager to Leader’ (completed on 07/2020)
·PAYG payment summary for the year ending 30 June 2020 for Tippawan Kekarit
·PAYG payment summary for the year ending 30 June 2020 for Haesun Jeong
·PAYG payment summary for the year ending 30 June 2019 for Ni Luh Paris Lasia
·PAYG payment summary for the year ending 30 June 2019 for Harlie Rose Singleton
·PAYG payment summary for the year ending 30 June 2019 for Violet Learadi Tahlia
·Visa Entitlement Verification Online – Visa Detail Check for Jeong Haesun
·Visa Entitlement Verification Online – Visa Detail Check for Tippawan Kekarit
·Letter from Kumne Seo (Public Accountant, Ko Tax Solutions) (20/8/2020)
·PAYG payment summary for the year ending 30 June 2015 for Boyoung Yoon
·Notice of assessment for the year ended 30 June 2015 Miss Boyoung Yoon
·PAYG payment summary for the year ending 30 June 2016 for Boyoung Yoon
·Notice of assessment for the year ended 30 June 2016 Miss Boyoung Yoon
·PAYG payment summary for the year ending 30 June 2017 for Boyoung Yoon
·Notice of assessment for the year ended 30 June 2017 Miss Boyoung Yoon
·PAYG payment summary for the year ending 30 June 2017 for Boyoung Yoon
·PAYG payment summary for the year ending 30 June 2017 for Hee Tak An
·Taxation estimate for the year ended 30 June 2017 for Bo Yung Yoon (date prepared 2020)
·Individual tax return 2017 for Mrs Bo Young Yoon
·Payslips from Emmario Pty Ltd to Boyoung Yoon for the pay period from 1 July 2016 to 23 June 2017;Commonwealth Bank Complete Access Statement of Mr Y Jeon and Miss B Yoon (statement period 1 May 2016 – 30 July 2016)
·Commonwealth Bank Complete Access Statement of Mr Y Jeon and Miss B Yoon (statement period 31 July 2016 – 30 October 2016)
·Commonwealth Bank Complete Access Statement of Mr Y Jeon and Miss B Yoon (statement period 31 October 2016 – 30 January 2017)
·Commonwealth Bank Complete Access Statement of Mr Y Jeon and Miss B Yoon (statement period 31 January 2017 – 18 April 2017)
·Commonwealth Bank Complete Access Statement of Mr Y Jeon and Miss B Yoon (statement period 19 April 2017 – 30 April 2017)
·Commonwealth Bank Complete Access Statement of Mr Y Jeon and Miss B Yoon (statement period 1 May 2017 – 30 July 2017)
·Letter from AMP to Ms Bo Young Yoon (3/8/2017)
·Letter from AMP to Ms Bo Young Yoon (5/8/2016)
·Superannuation guarantee charge statement – quarterly, for the quarter ended 30/6/2015 for Emmario Pty Ltd
·Screenshot of payment from Westpac Business One (description: Emmario) to Tax Office Payments
ATTACHMENT D - 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 3906

22 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal