G.M. Chemicals Aust International Pty Ltd (Migration)

G.M. Chemicals Aust International Pty Ltd (Migration) [2020] AATA 3972 (1 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  G.M. Chemicals Aust International Pty Ltd
CASE NUMBER:  1931792
HOME AFFAIRS REFERENCE(S):          BCC2018/594127
MEMBER:Antonio Dronjic
DATE:1 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 01 September 2020 at 2:33pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Chemical Plant Operator – financial capacity to maintain term of employment – considerable trading loss – training commitments and obligations – Training Benchmark A – adverse information – site visit report – non-disclosure certificates – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 375A, 376
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 29 October 2019 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 5 February 2018. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two 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 G.M. Chemicals Aust International Pty Ltd. The nominee is Mr Gurminder Singh and the nominated occupation is Chemical Plant Operator (ANZSCO 399211).
The delegate refused the application on the basis the applicant’s nomination did not satisfy 5.19(3)(c)(ii)(A) of the Regulations because the delegate found that the nominee has not been employed in the position (as a Chemical Plant Operator and performing all the duties of this position) in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years.
The applicant applied to the Tribunal on 8 November 2019 for review of the delegate’s decision and with the application submitted a copy of the primary decision.
On 8 and 26 November 2019, the applicant submitted documentary evidence in support of the application. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 22 May 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 26 May 2020, the applicant responded to the Tribunal invitation. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
On 30 July 2020 the Tribunal wrote to the applicant advising that the Department issued 2 Certificates and Notifications Regarding Disclosure of Certain Information under s.375A and s.376 of the Act. The Tribunal enclosed copies of those certificates and invited the applicant to make submissions on the validity of the certificates and state why material should be released.
On 31 July 2020, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 26 August 2020.
On 3 August 2020, the applicant wrote the following letter to the Tribunal:
Prior to 12 August 2018, reg 2.87B imposed an obligation on standard business sponsors to meet annual training benchmark requirements for their employees as specified in a Legislative Instrument IMM 18/047)
This regulation was repealed with the introduction of the SAF levy such that current and former standard business sponsors are not required to comply with the repealed training obligations in relation to a period of 12 months ending on or after 12 August 2018.
On the same day, the applicant wrote to the Tribunal requesting copies of documents covered by the s.376 and s.375A certificates stating that disclosing those documents would enable the applicant to understand the reasons the Department refused the nomination application and present further explanation about the issues arising from those documents. With this letter the applicant submitted:
·A copy audit report for G.M. Chemicals Aust International Pty Ltd dated 24 July 2019;
·A copy of a certificate of analysis dated 6 April 2020; and
·A copy of an invoice from Silliker Australia dated 9 April 2020.
On 6 August 2020, the applicant submitted a letter from Mr Yousif in which he again requested disclosure of documents covered by the non-disclosure certificates issued by the Department on 30 July 2020.
On 19 August 2020, the applicant submitted a copy of financial statements for the year ending 30 June 2020 which include profit and loss statements.
Mr Yousif appeared before the Tribunal on 26 August 2020 on behalf of the applicant to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Gurminder Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
In his evidence, Mr Yousif stated that the business was registered in September 2013 and operates from commercial promises located in Campbellfield, Victoria. He is and has been the company director and 50% shareholder since September 2013. He confirmed in his evidence that the nominee, Mr Singh was a company director and 50% shareholder from September 2013 to May 2015 when the nominee transferred his shares to his wife, Ms Harpreet Kaur. She currently holds 50% of company’s shares.
Mr Yousif stated that in 2013, he took a loan from a bank and invested $120,000 in the business by way of director’s loan. He confirmed in his evidence that in the 2015/16 financial year, this loan increased to $479,695 and that in the 2019/20 financial year, his director’s loan was $319,111. He further stated that neither Mr Singh nor his wife, Ms Kaur, who currently has 50% shareholding of the nominating business, ever invested any money in the business.
Mr Yousif stated in his evidence that he works at the nominating business 5 days per week from 9 am to 5 pm. His role includes overall supervision of the business, marketing and sales, administrative duties and deliveries. He does not draw salary from the business, is not paid director’s fees and does not take any profit from the business.
When asked by the Tribunal, he stated that he never paid himself wages, director’s fees or took any profit from the business. The Tribunal enquired as to why he would invest money in the business where he works on a full-time basis and from which he is not receiving wages, director’s fees or profit. He stated that he is hoping that in the future he will be making a profit from the business.
When asked by the Tribunal why Ms Kaur is holding 50% of the company shares, considering that she is not a business director, did not invest any money into the business and does not work at the nominating business, Mr Yousif stated that 50% of the shares were initially allocated to Mr Singh because of his skills and expertise related to the business operations.
Mr Yousif gave evidence that the nominator’s only full-time employee is Mr Singh who commenced employment in September 2013. Mr Singh was subsequently sponsored by the nominator and was granted a Subclass 457 visa on 1 February 2016. That visa remained valid until 1 February 2020.
Mr Yousif stated that he is not aware what formal education the nominee has and that he offered Mr Singh employment because he had more than three years of relevant work experience. Initially, Mr Singh was paid an annual salary of $54,000. Currently he is paid approximately $66,000 per annum. His salary is paid on a weekly basis by transferring money to the nominee’s designated bank account.
The Tribunal explained the requirements of r.5.19(3)(d)(i) and noted that the Tribunal must be satisfied that the nominator has the financial capacity to provide the nominee with a minimum of 2 years of full-time employment. The Tribunal referred to the nominator’s financial statements from the 2015/16 to 2019/20 financial years provided by the applicant and noted that in the 2015/16 financial year, the business traded with a loss of $109,000. The Tribunal further noted that in 2019/20 financial year the business traded with a loss of almost $40,000.
Mr Yousif confirmed in his evidence that since the 2015/16 financial year, the business traded with a loss. He gave evidence that, because of the current COVID-19 restrictions imposed, the business is slowing down. He stated that the business received a cash-boost government grant in the total amount of $15,000 but not jobkeeper payments.
The Tribunal observed that in his evidence Mr Yousif stated that, despite working on a full-time basis, he is not receiving any salary, director’s fees or profit from the business. The Tribunal observed that, having considered the nominator’s financial statements, the business would not be financially capable of paying a salary to a person who works 5 days per week and whose tasks include overall supervision of the business, marketing and sales, administrative duties and deliveries. Mr Yousif stated that he agrees with the Tribunal’s observation but is hoping to be able to place the company’s products to big supermarkets such as Aldi and Coles in the future.
The Tribunal explained the requirements of r.5.19(3)(f) – training commitments and obligations – and noted that the most recent SBS approval was between 20 May 2015 and 20 May 2020. Mr Yousif confirmed that the business intends to rely on meeting the training benchmark ‘A’ by making payments to an industry training fund to the equivalent of at least 2% of the payroll of the business.
The Tribunal noted that, according to the nominator’s financial statements for the 2015/16 financial year, the total payroll was $64,587 and accordingly, the required training expenditure for that year was $1,291, being 2% of the total payroll. The nominator submitted a receipt from TAFE NSW dated 28 April 2016 as evidence of payment of $1,200 to an industry training fund. The Tribunal noted that the amount paid to TAFE NSW is less than 2% of the payroll for that financial year.
The Tribunal further observed that, according to the nominator’s financial statements for 2017/18 financial year, the total payroll was $72,883 and accordingly, the required training expenditure for that year was $1,457 being 2% of the total payroll. The Tribunal noted that the ‘training expenditure’ recorded in the profit and loss statement for the 2017/18 financial year was $1,364 which is less than 2% of the payroll for that financial year.
Mr Yousif stated that it is possible that a mistake was made and indicated his willingness to pay any additional amount for training expenditure now. He further stated that, relying on the advice received from its former migration agent, the nominator did not make payments to an industry training fund in the 2018/19 and 2019/20 financial years.
The Tribunal explained that, according to an explanatory statement relevant to the legislative instrument IMMI 13/030, 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. Mr Yousif confirmed in his evidence that Mr Singh was granted a Subclass 457 visa on 1 February 2016 and that his visa remained valid until 1 February 2020.
The Tribunal referred to s.376 and s.375A non-disclosure certificates issued by the Department on 30 July 2020 and noted that copies of both certificates were provided to the applicant with the Tribunal’s letter of 30 July 2020.
The Tribunal explained that the s.376 certificate relates to photographs of the business premises taken by the immigration officers during the site visit conducted on 28 March 2019 and that the Tribunal does not consider those documents to be relevant to the current review applications.
The Tribunal further explained that the s.375A certificate relates to:
·Departmental ICSE records;
·A site visit report;
·Handwritten notes from the site visit report;
·A Standard Tactical Plan;
·A Risk Management Assessment; and
·Photographs of the business premises taken by the immigration officers during the site visit.
The Tribunal explained that the outcome of the site visit report was summarised in the primary decision record submitted to the Tribunal by the applicant and that, according to the primary decision, on 7 May 2019 the Department invited the applicant to comment on adverse information arising out of the site visit report and that the applicant responded to this invitation on 15 May 2019.
The Tribunal further explained that documents headed Standard Tactical Plan and Risk Management Assessment are Departmental internal documents and as such, disclosure of those documents is contrary to public interest as it may reveal lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal reiterated that its main concerns relate to the applicant being able to meet r.5.19(3)(d)(i) (the nominator’s financial capacity to provide the nominee with a minimum of 2 years of full-time employment) and r.5.19(3)(f) – whether the nominator 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 complied with the applicable obligations relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor.
The Tribunal explained that none of the information covered by the s.375A certificate are relevant to the applicant’s ability to meet r.5.19(3) (d)(i) and r.5.19(3)(f) and as such the information covered by the s.375A certificate would not be the reason or part of the reason for affirming the decision under the review.
Oral evidence of Mr Singh
In his evidence, Mr Singh stated that he first came to Australia in May 2008. By 2013, he completed a Certificate IV in Business and Diploma in Management courses in Australia. His wife completed a Diploma in Hairdressing course and, upon completing her studies in Australia, was granted a Subclass 485 visa. When asked by the Tribunal, Mr Singh stated that he does not have formal qualifications relevant to his occupation of Chemical Plant Operator.
He first met Mr Yousif in 2011 or 2012. At that time Mr Singh was working at NV Chemicals. Mr Singh commenced full-time employment at the nominating business in September 2013. He was also a company director and shareholder from September 2013 to May 2015. Acting on the advice received from his former migration agent, he transferred his shareholding in the nominating business to his wife and ceased to be a company director.
Based on the sponsorship and nomination from G.M. Chemicals Aust International Pty Ltd, he was granted a Subclass 457 visa on 1 February 2016. This visa remained valid until 1 February 2020. Initially he was paid an annual salary of $53,000. His current salary is $67,000 excluding superannuation and is paid by weekly transfers to Mr Singh’s bank account.
Mr Singh gave evidence that neither he nor his wife invested money in the nominating business. He stated that Mr Yousif works on a full-time basis at the nominating business and that his duties include sales, administration and delivery. When asked by the Tribunal if Mr Yousif is paid for his full-time work, he stated that he does not have any knowledge of that.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
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. For the nomination to be approved, all the requirements must be 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 Tribunal considered whether the applicant has the financial capacity to provide the nominee with a minimum of 2 years of full-time employment.
Based on the nominator’s financial statements from the 2015/16 to 2019/20 financial years provided by the applicant, the Tribunal finds that:
·As of 30 June 2016, the business traded with a loss of $109,000;
·As of 30 June 2017, the business traded with a loss of $89,682;
·As of 30 June 2018, the business traded with a loss of $60,079;
·As of 30 June 2019, the business traded with a loss of $25,104; and
·As of 30 June 2020, the business traded with a loss of $39,753.
In his evidence, Mr Yousif stated that the nominee is the only full-time employee who is receiving a salary from the business. It was submitted that the nominee works as a Chemical Plant Operator and is not involved in any other aspect of business operations. The Tribunal is not satisfied that the nominator would be able to conduct its business operations without a person who would undertake duties such as marketing and sales of products, administrative duties or delivery of products.
In his evidence Mr Yousif stated that his role includes overall supervision of the business, marketing and sales, administrative duties and deliveries. The Tribunal finds it difficult to accept Mr Yousif’s evidence that, despite working at the nominating business for the past 7 years, 5 days per week from 9 am to 5 pm, he never received a salary, director’s fees or profit from the business. The Tribunal finds Mr Yousif’s explanation, that he is hoping to be able to make a profit from the business in the future, unconvincing.
In addition to working on a full-time basis for the past 7 years without receiving any monetary compensation, Mr Yousif invested considerable funds in to the business by way of advancing a director’s loan. According to the nominator’s financial statements and Mr Yousif’s evidence, his loan to the company varied between the initial investment of $120,000 in 2013 to $479,695 as of 30 June 2016 and $319,111 as of 30 June 2020. At the same time, Ms Kaur, the nominee’s wife, holds 50% of company shares even though she neither works at the company nor has she invested any funds in the business.
In his evidence, Mr Yousif conceded that the business is not financially capable of paying a salary to a person who would undertake duties currently performed by him and stated that in future he is hoping to place the company’s products in big supermarkets such as Aldi and Coles and by doing that, increase the business revenue.
The Tribunal acknowledges that it is possible that the nominator would be able to increase its turnover and commence trading with profit sometime in the future if the business is able to place its products in big supermarkets. However, the Tribunal is required to determine whether the nominating business is currently able to employ the nominee on a full-time basis and pay him an annual salary of $66,000 for the minimum period of 2 years.

The Tribunal acknowledges that the nominee was paid a salary since he was granted a Subclass 457 visa and finds that the nominator was only able to do so because the Australian citizen, Mr Yousif, who is and has been working on a full-time basis for the past 7 years and undertaking duties necessary for the business operations was not paid at all.
Based on the evidence before it, including the nominator’s financial statements from 30 June 2016 to 30 June 2020, and the Tribunal’s finding that the business traded with considerable loss throughout this period, the Tribunal is not satisfied that the nominator has financial capacity to provide the nominee with the minimum of 2 years of full-time employment.
Given the above findings, the requirement in r.5.19(3)(d) is not met.
As the Tribunal found that the applicant does not meet r.5.19(3)(d), it is not necessary for the Tribunal to make findings related to r.5.19(3)(f) despite having serious concerns raised at the hearing as to whether the nominator fulfilled commitments made relating to meeting the training requirements during the period of the nominator’s most recent approval as a standard business sponsor.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Antonio Dronjic
Member

ATTACHMENT A
·Commonwealth of Australia Statutory Declaration of Gurminder Singh (8/11/2019)
·A letter/submission from Jason Yousif to the Tribunal (7/11/2019)
·A letter/submission from Jason Yousif to the Tribunal (22/11/2019)
·Pay details from GM Chemicals to Gurminder Singh for the pay periods:
o07/10/2019 – 13/10/2019
o14/10/2019 – 20/10/2019
o21/10/2019 – 27/10/2019
o28/10/2019 – 3/11/2019
·Notice of assessment – year ended 30 June 2016 for Mr Gurminder Singh
·Notice of assessment – year ended 30 June 2017 for Mr Gurminder Singh
·Notice of assessment – year ended 30 June 2018 for Mr Gurminder Singh
·Notice of assessment – year ended 30 June 2019 for Mr Gurminder Singh
·PAYG payment summary for Gurminder Singh for the periods:
o1/7/2015 – 30/6/2016
o1/7/2016 – 30/6/2017
o1/7/2017 – 30/6/2018
o1/7/2018 – 30/6/2019
·Licence to Perform High Risk Work (Victoria) issued to Gurminder Singh (14/4/2016)
·Certificate of Registration to G M Chemicals Aust International pty Ltd from SAI Global (16/8/2019)
·Tax Invoice from Redox to GM Chemical Aust International Pty Ltd (27/8/2019)
·Tax Invoice from Redox to GM Chemical Aust International Pty Ltd (1/8/2019)
·Tax Invoice from Redox to GM Chemical Aust International Pty Ltd (4/10/2019)
·Tax Invoice from ilchem to GM Chemicals Aust. Int. Pty LTD (19/9/2019)
·Redox Safety Data Sheet (12/9/2016)
·Redox Safety Data Sheet, Sulphuric Acid >51% Revision 3 (24/10/2014)
·Redox Safety Data Sheet Hydrofluoric acid (>=7% - <=50%) Revision 3 (5/9/2018)
·Image of workplace
·Image of ‘Moro’ products
·Image of Super Alloy Wheel Cleaner
·GM Chemical Aust Intl P/L. Bach Control Sheet (2/10/2014)
·Certificate of Analysis (2/10/2019)
·GM Alloy Wheel Cleaner (GHS) Material Safety Data Sheet (August 2017)
·Image of D10 Multipurpose Degreaser
·GM Chemical Aust Intl P/L. Bach Control Sheet (30/10/2014)
·Certificate of Analysis (30/10/2019)
·GM Degreaser D10 (GHS) Material Safety Data Sheet (August 2017)
·Image of GM Tyre Shine
·GM Tyre Shine (GHS) Material Safety Data Sheet (August 2017)
·pH Meter Calibration Record
ATTACHMENT B
·G.M. Chemicals Aust International Pty Ltd Financial Statements For the Year Ended 30 June 2019
·G.M. Chemicals Aust International Pty Ltd Annual Report For the Year Ended 30 June 2018
·BAS Statements for the periods:
oJan 2018 – March 2018
oApril 2018 – June 2018
oJuly 2018 – September 2018
oOctober 2018 – December 2018
oJanuary 2019 – March 2019
oApril 2019 – June 2019
oJuly 2019 – September 2019
oOctober 2019 – December 2019
oJanuary 2020 – March 2020)
·Tax Estimation For the year ended 30 June 2019, including company tax return 2019
·Letter/submission from Jason Yousif to the Tribunal (25/5/2020)
·Notification of approval as a Temporary Business Entry Standard Business Sponsorship – Aus Business (20/5/2015)
·ASIC Current and Historical Company Extract for G.M. Chemicals Aust International Pty Ltd
·Taxation Estimate for the year ended 30 June 2018, including company tax return 2018
·Taxation Estimate for the year ended 30 June 2019, including company tax return 2019
·Contract of Employment between G.M. Chemicals Aust International Pty Ltd TA G.M. Chemicals (Employer) and Gurminder Singh (Employee) (9/1/2018)
·Position description of ‘Chemical Plant Operator (ANZSCO Occupation Code: 399211) (25/5/2020)
·Contract of Employment between G.M. Chemicals Aust International Pty (Employer) and Gurminder Singh (Employee) (25/5/2020)
·Receipt from Sydney Institute to Jason Yousif, GM Chemical Aust Intl P/L (5/05/2015)
·Receipt from Sydney Institute to Jason Yousif, GM Chemical Aust Intl P/L (28/4/2016)
·Letter from Curtin University to GM Chemicals regarding ‘457 Visa Training Benchmark A – Period 20/05/2015 – 19/05/2016’ (11/1/2018)
·Receipt from Sydney Institute to Jason Yousif, GM Chemical Aust Intl P/L (28/3/2017)
·Receipt from Sydney Institute to Jason Yousif, GM Chemical Aust Intl P/L (28/3/2018)
·Notice of assessment – year ended 30 June 2016 for Gurminder Singh
·Notice of assessment – year ended 30 June 2017 for Gurminder Singh
·Notice of assessment – year ended 30 June 2018 for Gurminder Singh
·Notice of assessment – year ended 30 June 2019 for Gurminder Singh
·PAYG payment summary for Gurminder Singh for the period of:
o   1/7/2015 – 30/6/2016
o   1/7/2016 – 30/6/2017
o   1/7/017 – 30/6/2018
o   1/7/2018 – 30/6/2019
·Pay details from GM Chemicals to Gurminder Singh for the pay periods:
o04/05/2020 – 10/5/2020
o27/4/2020 – 3/5/2020
o20/4/2020 – 26/4/2020
o13/4/2020 – 19/4/2020
·Certificate of Registration to G M Chemicals Aust International Pty Ltd from SAI Global (16/8/2019)
·Commonwealth of Australia, Australian Citizenship: Angeleen Kaur (30/5/2019)
·BAS Statements for the period January 2020 – March 2020
·GM Chemicals Aust Intl P/L. Bach Control Sheet (30/10/2019 and 2/10/2014)
·Certificate of Analysis, product name: Degdio (30/10/2019)
·Certificate of Analysis, product name: Alloy Wheel Cleaner (2/10/2019)
·pH Meter Calibration Record
·ASIC Certificate of Registration of a Company for ‘G. M. Chemicals Aust International Pty Ltd (issued on 10/9/2013)
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)    identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(iv)     identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)    is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)     both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)    all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)     the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)    the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)    it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2020] AATA 3972

1 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal