F.S SANTUCCI & A VISANI (Migration)

[2024] AATA 2625

F.S SANTUCCI & A VISANI (Migration) [2024] AATA 2625 (11 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  F.S SANTUCCI & A VISANI

REPRESENTATIVE:  Ms Kathryn Rose Viegas

CASE NUMBER:  2112336

HOME AFFAIRS REFERENCE(S):          BCC2020/1798191

MEMBER:Penelope Hunter

DATE:11 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 11 July 2024 at 2:21pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – hairdresser – actively and lawfully operating business – partnership’s business name cancelled and ABN and registration for GST ceased – change from partnership to company, with business still operating and nominee employed and working – requirement that nominator be the standard business sponsor who last identified nominee in a nomination – company now approved as standard business sponsor – due diligence inquiries with no response from department – partnership reinstated but no registration for GST and no evidence of operating business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359(2)
Migration Regulations 1994 (Cth), r 5.19(3)(b), (4)(e), (5)(h)(i)
Partnership Act 1982 (NSW), s 1
Corporations Act 2011 (Cth), s 50AAA

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 Home Affairs on 2 September 2021 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. F. S Santucci & A Visani applied for approval on 25 June 2020. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

3. In this case, the F. S Santucci & A Visani  have applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.

4. The delegate refused the application on the basis that reg 5.19(5)(h) of the Regulations was not satisfied because the delegate was not satisfied that F. S Santucci & A Visani was actively and lawfully operating a business in Australia.

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

   BACKGROUND

6. On 21 May 2018,  F. S Santucci & A Visani was approved as a standard business sponsor, sponsorship application number EGOEUGV2CO effective until 21 May 2023. On the same date F. S Santucci & A Visani was approved as nominator of the nominee for a subclass 482 visa by the Department, Nomination Application Transaction Reference Number (TRN EGOM343P61).

7. On 25 June 2020, F. S Santucci & A Visani lodged the nomination application under review seeking approval to sponsor, Mr Steven Cairney as nominee, for a subclass 186 visa in the Temporary Residence Transition Stream in the position of hairdresser (ANZSCO 391111).

8. The nomination form set out that F. S Santucci & A Visani was the holder of Australian Business Number (ABN) 15635255676, the business structure was a sole proprietor. There were no other owners, directors, principals and/or partners declared and the owner was identified as Filomena Santucci.  The name of the business was identified as Access Hair.

9. In support of the nomination application following documents were relevantly submitted:

   ·     Partnership Annual Accounts for the year ending 30 June 2019, that listed equivalent partnership distributions to Filomena Santucci and Andrea Visani.

   ·     A balance sheet as of 30 June 2018, that listed liabilities in the form of owner drawings for Nina and Andrea.

   ·     An organisational chart identifying Nina Santucci as owner and Andrea Visani as Manager.

   ·     Business Activity Statements (BAS) for the periods ending 31 March 2018, 30 June 2018, 31 March 2020, these recorded owner drawings to Andrea and Nina.

   ·     Partnership Annual Accounts for the nine months as of 31 March 2021, that listed equivalent partnership distributions to Filomena Santucci and Andrea Visani.

   ·     A draft partnership tax return for F.S Santucci & A Visani for the 1 July 2019 to 30 June 2020, recording partnership distributions to Filomena Santucci and Andrea Visani.

10. On 8 June 2021, the Department wrote to F.S Santucci & A Visani and advised that in the course of assessing the nomination application the Department conducted checks on legal name F.S Santucci & A Visani (ABN 15635255676) and trading name Access Hair Summer Hill. The information obtained by the Department from the Australian Securities and Investment Commission (ASIC) revealed that the business name F. S Santucci and A Visani (ABN 15635255676) had been cancelled since 6 April 2021. The check also revealed that the legal name F.S Santucci & A Visani whose entity type is ‘Other Partnership’ was not registered for Goods and Service Tax (GST). This information suggested that F. S Santucci & A Visani was not actively operating the nominating business from the nominating address and comment was invited particularly addressing the requirements of reg 5.19(5)(h)(ii), 5.19(5)(k), 5.19(5)(n) and 5.19(5)(l) of the Regulations.

11. The Department received the following by way of response:

    ·Letter dated 23 June 2023 from Filomena Santucci, Access Hair, in which she set out that on 6 April 2021 the business changed entity from partnership to company. The company director was herself, and that she was one of the initial partners of F. S Santucci & A Visani. Access Hair Pty Ltd was GST and PAYG registered. The nominee was still working at Access Hair Summer Hill, other than an entity change, it was claimed that nothing else had changed.

    ·A letter from Krystle Jones, Summer Hill Tax & Accounting, dated 23 June 2021, that set out that the business Access Hair was actively and lawfully operating, the business was previously a partnership in the name of F.S Santucci & A Visani (ABN 15635255676) and the business underwent a re-structure from a partnership to a company (Access Hair Pty Ltd)(ABN 65647046768), and the proprietor remained the same Ms Filomena Santucci.

    ·ASIC Company summary details for Access Hair Pty Ltd, registration date 11 January 2021.

    ·Australian Taxation Office (ATO) letter dated 7 April 2021 confirming registration of Access Hair Pty Ltd for PAYG.

    ·Australian Taxation Office (ATO) letter dated 7 April 2021 confirming registration of Access Hair Pty Ltd for GST.

    ·Letter dated 5 May 2021 from NSW Education Training Services confirming the transfer of an apprentice from F. S Santucci & A Visani to Access Hair Pty Ltd with effect from 6 April 2021.

    ·Profit and Loss statement for Access Hair Pty Ltd for the month ended 30 June 2021.

    ·Payment summaries for Mr Carney by Access Hair Pty Ltd (ABN 65647046768) for the period 4 March 2021 to 4 May 2021.

12. The delegate in refusing the nomination application acknowledged the submissions that the business had undergone a restructure and now trading as Access Hair Pty Ltd (ABN:65647046768). However, the delegate noted that the nomination was lodged under the Temporary Residence Transition (TRT) stream, which under Regulation 5.19(h)(i) requires the nominator to be the standard business sponsor who last identified the identified person in a nomination and Regulation 5.19(h)(ii) requires that the same nominator is actively and lawfully operating a business in Australia. As F. S Santucci & A Visani (ABN:15635255676) was the standard business sponsor who last identified the person in a nomination, it followed that F. S Santucci & A Visani (ABN: 15635255676) was the identified nominator who is required to be actively and lawfully operating a business in Australia. Further as the ABN 15635255676 for F. S Santucci & A Visani had been cancelled, and the business was longer registered for GST, the delegate was not satisfied that the nominator identified in this application is actively and lawfully operating a business in Australia.

13. On 14 September 2021, the Tribunal received an application for review from F. S Santucci & A Visani, together with a copy of information submitted to the Department and the decision record of the delegate under review.

14. On 14 October 2021, the Tribunal received a copy of a letter by the Department on 12 October 2022, notifying approval of Access Hair Pty Ltd as a Standard Business Sponsor.

15. On 16 October 2023, the Tribunal issued an invitation pursuant to s 359(2) of the Act for further information in relation to the criteria for the nomination approval to be provided.

16. On 23 October 2023, a response was provided. This again included documents previously filed with the Department and the Tribunal, a current and historical company extract for Access Hair Pty Ltd (ACN 647946768), financial statements for Access Hair Pty Ltd for the year ending 30 June 2022, an organisation chart, a schedule of insurance for Access Hair Pty Ltd, an employment contract for Mr Cairney with Access Hair Pty Ltd dated 20 October 2023, PAYG Summary from Access Hair ABN 15634255676 for the nominee for the year ending 30 June 2019, Payroll summaries for the Mr Cairney for Access Hair and Access Hair Pty Ltd, various payslips of Mr Cairney from 2019 to 9 October 2023, letter dated 21 May 2018 notifying F. S Santucci & A Visani of approval as a standard business sponsor with effect until 21 May 2023.

17. On 29 January 2024, the Tribunal invited F. S Santucci & A Visani to appear at a hearing to give evidence and present arguments on 23 February 2024, and in anticipation of the hearing the Tribunal requested pre-hearing submissions, supported by appropriate authorities, in relation to reg 5.19(h)(i) of the Regulations which requires the nominator to be, or to have been, the standard business sponsor who last identified the nominee in a nomination approved under the provisions of s140GB of the Act. The Tribunal did not receive any submissions in response to this invitation.

18. Ms Filomena Santucci appeared before the Tribunal on 23 February 2024 on behalf of the F.S Santucci & A Visani to give evidence and present arguments. The hearing was combined with the review application for the visa nominee, Mr Steven Cairney and his partner, Mr Blair MacLeod. The Tribunal also received oral evidence from Mr Cairney and Mr MacLeod. At the time of hearing F.S Santucci & A Visani was represented by Ms Anastasia Vu and she was also present at the hearing.

19. During the hearing Ms Santucci confirmed in her evidence that the business has ceased being operated as a partnership with Andrea Visani in April 2021. She said that she was no longer in business with Andrea Visani, and the partnership had been wound up. She told the Tribunal that the entity changed for taxation purposes. She claimed that at the time she undertook some due diligence to check how it would impact the nomination and that she did not receive any direction from the Department. She told the Tribunal that she was happy to do anything which would assist the application to be approved.

20. The Tribunal identified to Ms Santucci, Mr Cairney and Ms Vu that the Department had put F.S Santucci & A Visani on notice of relevant issues and the impact of the change in business structure in 2021, it then proceeded to refuse the visa due to the change in business structure. This remained a live issue before the Tribunal, and submissions had been requested in relation to the refusal criteria. It was confirmed that Mr Cairney was currently employed by Access Hair Pty Ltd not F. S Santucci & A Visani, and had been so employed since 2021. It was noted that evidence has been submitted that on the restructure of the business a process being undertaken to transfer apprentices and approval being obtained for the transfer. As a nominator of Mr Cairney, F.S Santucci and A Visani had made representations to the Department in respect of the nomination application and the ongoing responsibilities upon approval. It was identified by the Tribunal that on the material before it, the Tribunal was not satisfied that the F.S Santucci & A Visani was actively and lawfully trading, it was also not the employer of the nominee, and the Tribunal could not be satisfied that it could guarantee the employment of the nominee for at least two years, which were all requirements for the nomination approval. Ms Santucci submitted that it was her business that had been operating from the same place despite the restructure. The Tribunal identified that the company Access Hair Pty Ltd was not in existence or an approved nominator at the time the nomination had been lodged, and was not the entity that had provided the representations in the visa application in respect of a nominator’s obligations under the Act.

21. At the conclusion of the hearing Ms Vu sought additional time to review the issues in relation to the application and take advice from Ms Santucci and Mr Cairney as to whether they wished to proceed with the application, submit further material or withdraw the application and pursue another option for sponsorship of Mr Cairney. The Tribunal granted leave until 15 March 2024, for further material to be provided in respect of the review.

22. On 4 March 2024, the Tribunal was advised that F. S Santucci & A Visani was no longer represented by Ms Vu.

23. On 13 March 2024, the Tribunal received advice of a new representative, Ms Kathryn Viegas.

24. On 15 March 2024, the Tribunal received a request for access to the written material held by the Tribunal and advising that they were instructed by the accountant that the nominating entity F.S Santucci & A Visani was an associated entity of Access Hair Pty Ltd for the purposes of the Corporations Act 2011 (Cth) and that a process was underway to reactivate the nominating entity. A further three weeks extension was requested to provide further material to the Tribunal.

25. On 8 April 2024 the Tribunal received correspondence from Ms Viegas advising that the reactivation of the partnership had been finalised and further information via the Australian Business Register would be submitted. The correspondence was accompanied by the following documents:

    ·Letter from Krystle Jones of Summer Hill Tax & Accounting, dated 11 March 2024, confirming that the F.S Santucci & A Visani and Access Hair Pty Ltd are associated entities.

    ·Letter from Krystle Jones of Summer Hill Tax & Accounting, dated 11 March 2024, confirming that she had applied for the ABN of the F.S Santucci & A Visani to be activated.

    ·An application for an ABN for F. S Santucci & A Visani submitted on 13 March 2024.

26. On 9 April 2024, the Tribunal received a letter dated 9 April 2024 confirming the reinstatement of the ABN 15635255676 for F.S Santucci & A Visani effective as of 15 June 2016. The associates of the entity were listed as Ms Filomena Santucci (partner) and Mr Andrea Visani (partner).

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The issue in this case is whether the F.S Santucci & A Visani meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Status of the nominator – reg 5.19(5)(h)

28. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

29. F.S Santucci and A Visani was the identified as the nominator in the nomination application under review and F.S Santucci and A Visani was the nominator of Mr Cairney in a nomination in relation to his previous Subclass 482 visa approved under s 140GB of the Act.

30. Although the nomination application lodged contains a representation that the of business structure of F.S Santucci and A Visani was a sole trader, this appears to have been an error. The evidence indicates that F.S Santucci and A Visani is a partnership. Ms Santucci told the Tribunal that it was a partnership at the Tribunal at hearing. On the basis of this concession and having regard to the correspondence of Ms Krystle Jones of Summer Hill Taxation & Accounting, the partnership financial records submitted, partnership taxation accounts, the letter of submission of Ms Santucci dated 23 June 2021 and records of distributions to partners and owners of the business prior to April 2021 to Ms Santucci and Mr Visani, the Tribunal finds that F. S Santucci and A Visani was a partnership entity.  

31. A partnership is defined under s 1 of the Partnership Act 1982 (NSW) as the relation which exists between persons carrying on a business in common with a view of profit and includes a limited incorporated partnership. It specifically excludes the relation between members of any company or association which is incorporated under the Corporations Act 2001 of the Commonwealth.

32. F. S Santucci and A Visani, held the ABN 15 635 255 676, was registered for GST and operated under the registered business name Access Hair Summer Hill and its principal place of business was located at Summer Hill NSW.

33. On the material before the Tribunal while the nomination application was under consideration by the Department, Ms Santucci and Mr Visani determined to end their partnership. Ms Santucci became the director of a company, Access Hair Pty Ltd, registered on 11 January 2021. Access Hair Pty Ltd, then obtained the ABN and registered for GST and PAYG withholding with effect from 6 April 2021. Access Hair Pty Ltd is a separate legal entity to the partnership F. S Santucci & A Visani, identified as the nominator in the nomination application under review.

34. Further, on the material before the Tribunal Access Hair Pty Ltd, took over the running of the hairdressing business at Summer Hill and many staff previously employed by F. S Santucci & A Visani, including the nominee became employees of Access Hair Pty Ltd. Mr Cairney entered into a new contract of employment with Access Hair Pty Ltd on 9 June 2020.

35. The financial records submitted to the Tribunal, and the evidence of Ms Santucci, verify that  F.S Santucci and A Visani stopped actively operating the business that was Access Hair Summer Hill as of 6 April 2021. The registration of F.S Santucci and A Visani for GST ceased as did the partnership ABN.

36. At the time of hearing the nominator F.S Santucci and A Visani were not trading, did not have a registered ABN and were not registered for GST. The evidence of Ms Santucci and Mr Cairney is that the hairdressing business of Access Hair continues to operate but it is through a different entity, Access Hair Pty Ltd.

37. Access Hair Pty Ltd is not the nominator and was not the standard business sponsor who last identified the nominee, Mr Cairney in a nomination approved under s 140GB of the Act. Access Hair Pty Ltd was only registered on 11 January 2021 and did not exist at the time the nomination application under review was lodged.

38. Post hearing, Ms Santucci with the assistance of her accountant has taken steps to reactivate the ABN for the partnership F.S Santucci and A Visani. On the material submitted the Tribunal accepts that this was successful and the ABN 15 635 255 676 has now been reinstated, with effect from 15 June 2016.

39. It remains that for reg 5.19(h) to be met the Tribunal must be satisfied that F.S Santucci and A Visani is actively and lawfully operating a business in Australia. A ‘Business’ is not defined in the Act or the Regulations for the purpose of reg 5.19 and accordingly, should be given its ordinary meaning, considered in the context of the applicable legislation. The Macquarie Online Dictionary defines business, inter alia, as either ‘the sale of goods and services for the purpose of making a profit’ or ‘a person, partnership, or corporation engaged in business; an established or going enterprise or concern’.[1]

    [1] Word Search (macquariedictionary.com.au) ‘business’.

1. With the reinstatement of the ABN the Tribunal accepts that the partnership F.S Santucci and A Visani has the potential to lawfully operate business in Australia. There is however no evidence provided that the partnership has registered for GST or PAYG which would be expected if the partnership was to lawfully carry on business.

2. The live issue upon review remains the same as that which founded the refusal of the nomination by the delegate. It is for an applicant to put forward evidence and information sufficient to satisfy or persuade the Tribunal that the relevant requirements for the nominations approval are met. This issue was identified in writing prior to the hearing and during the hearing. The Tribunal has allowed time for the parties to seek advice, and provided further material. Despite the time that has elapsed since the Tribunal hearing there is also no evidence that F.S Santucci & A Visani  is actively operating a business, that it is engaged in business or an ongoing enterprise of concern. It is considered that it is not sufficient for a business to have the potential to be lawfully operating for the purposes of approval of the nomination criteria under the Regulations it must be actively doing so. The evidence of re-registration of the ABN for F.S Santucci &A Visani is not accompanied by and further submissions regarding any active ongoing business of the partnership, there are no further financial records such as up to date balance sheets which record any current trading activity of F.S Santucci & A Visani or BAS statements, or business tax returns. There is no other evidence that a business is actively being carried on such as turnover data, lease agreements relating to business premises, insurance agreements relating to business operations, contracts to provide services, bank statements or evidence of employment of staff. While the Tribunal acknowledges the submission from the accountant that F.S Santucci & A Visani and Access Hair Pty are associated entities for the purposes of s 50AAA of the Corporations Act 2011 (Cth), this does not negate the requirement in reg 5.19(h) for the nominator F.S Santucci and A Visani to be actively and lawfully operating a business in Australia.

3. The evidence of Ms Santucci at the hearing is that it was not operating any business and the partnership had been wound up. The Tribunal is not satisfied that reinstatement of the ABN for F.S Santucci & A Visani is sufficient to support a finding that it is actively and lawfully operating a business. This was an accounting exercise which has not addressed the full requirement of the reg. 5.19(5)(h) of the Regulation. Consequently, on the material before it, the Tribunal is not satisfied that F.S Santucci & Visani is actively and lawfully operating a business.

4. Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(h) is met. Accordingly, reg 5.19(4)(e) is not met.

5. For these reasons the Tribunal is not satisfied that the F.S Santucci & A Visani meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.

   DECISION

6. The Tribunal affirms the decision under review to refuse the nomination.

   Penelope Hunter
   Member

   
   

   ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

   Application

   (1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

   (2)The application must:

   (aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and

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

   (b)identify the position; and

   (c)identify a person (the identified person) in relation to the position; and

   (d)identify an occupation in relation to the position; and

   (e)identify the subclass and stream to which the nomination relates, which must be one of the following:

   (i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

   (ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

   (iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

   (iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

   (v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

   (f)be accompanied by the fee mentioned in regulation 5.37; and

   (fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

   (fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

   (g)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.

   (2A) Paragraph (2)(aa) does not apply if:

   (a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and

   (b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.

   Approval of nomination

   (3)The Minister must, in writing:

   (a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

   (b)otherwise—refuse to approve the nomination.

   Requirements for approval—general

   (4)The requirements to be met for the nomination to be approved are as follows:

   (a)the application is made in accordance with subregulation (2);

   (b)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;

   (c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

   (i)hold a licence of a particular kind; or

   (ii)hold registration of a particular kind; or

   (iii)be a member (or a member of a particular kind) of a particular professional body;

   to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

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

   (da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

   (e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

   (f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

   (g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

   Temporary Residence Transition stream—additional requirements for approval

   (5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

   (a)at the time the application is made, the identified person holds:

   (i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

   (ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

   (iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

   (iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

   (v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

   (vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

   (b)the occupation:

   (i)is listed in ANZSCO; and

   (ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

   (c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

   (i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

   (ii)apply to the identified person in accordance with an instrument made under that subregulation;

   (d)either:

   (i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

   (ii)it is reasonable to disregard any such information;

   (e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

   (i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

   (ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

   (iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

   (f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

   (i)for a total period of at least 3 years (not including any periods of unpaid leave); and

   (ii)on a full‑time basis, with the employment being undertaken in Australia;

   (g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

   (h)the nominator:

   (i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

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

   (j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

   (k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

   (l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

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

   (n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

   (o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

   (i)paragraph 2.72(15)(a) did not apply; and

   (ii)references to the nominee were references to the identified person; and

   (iii)references to the person were references to the nominator;

   (p)either:

   (i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

   (ii)it is reasonable to disregard any such information;

   (q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

   Minister may vary certain Temporary Residence Transition stream requirements

   (6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

   (7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

   (8)The Minister may, by legislative instrument, specify:

   (a)occupations for the purposes of paragraph (5)(c); and

   (b)persons who are exempt from the operation of that paragraph; and

   (c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

   (i)the nominator;

   (ii)the identified person;

   (iii)the occupation;

   (iv)the position in which the identified person is to work;

   (v)the circumstances in which the occupation is undertaken;

   (vi)the circumstances in which the person is to be employed in the position.