GOLDEN PRODUCE NOMINEES PTY LTD ATF THE PHAM NGUYEN FAMILY TRUST (Migration)

[2018] AATA 5385

GOLDEN PRODUCE NOMINEES PTY LTD ATF THE PHAM NGUYEN FAMILY TRUST (Migration) [2018] AATA 5385 (12 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GOLDEN PRODUCE NOMINEES PTY LTD ATF THE PHAM NGUYEN FAMILY TRUST

CASE NUMBER:  1726366

DIBP REFERENCE(S):  BCC2016/4072005

MEMBER:R. Skaros

DATE:12 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 November 2018 at 11:43am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – nominee employed in nominated position for at least 2 years in the 3 years immediately before the nomination – Accommodation and Hospitality Managers (nec) – ANZSCO 141999 (Backpackers Manager) – nominee undertaking cleaning tasks – cleaning tasks for limited period – cleaning staff now employed – tasks undertaken by nominee consistent with position – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140M, 245AR(1)

Migration Regulations 1994, Schedule 2, rr 1.13A, 1.13B, 2.57(1), 2.83, 2.86, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2017 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).

2. The applicant applied for approval on 2 December 2016. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c) because the delegate was not satisfied that the nominee was employed in the position for which he was nominated for a period of at least 2 years in the 3 years immediately before the nomination was made.

5. On review, the Tribunal received detailed submissions and supporting documents, which it has relevantly considered further below.

6. The applicant’s Director, Ms Thi Le Thuy Nguyen, appeared before the Tribunal on 18 September 2018 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicant was represented in relation to the review by its registered migration agent.

8. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

10. 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.

11. The Tribunal is satisfied, on the basis of material in the Department’s file, that the application was made on the approved form and accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

12. The application identifies Mr Jirasak Hongslertpibhop (the nominee) who, according to Departmental records, was granted a Subclass 457 visa on 3 October 2014 on the basis of satisfying cl.457.223(4). The application identifies the occupation of Accommodation and Hospitality Managers (nec) – ANZSCO 141999 (Backpackers Manager). For reasons set out in detail further below, the Tribunal is satisfied that the position listed in ANZSCO has the same 4-digit code as the occupation carried out by the nominee.

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

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

14. 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.

15. The nominator was most recently approved as a Standard Business Sponsor on 12 August 2014 for a period of 3 years. Departmental records indicate that the nominator was the sponsor who last identified the nominee, who is the relevant 457 visa holder, in a nomination made under s.140GB. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(b)(i) is met.

16. At the hearing, the Director gave evidence the nominator operates a backpacker’s hostel (the Gecko Lodge) in Darwin, the Northern Territory. The business currently employs the nominee as a Backpacker Manager and one part-time/casual cleaner. The Tribunal has also had regard to the supporting material provided regarding the business’ operations, including company registration documents, recent activity statements, financial reports, organisational chart, employment contract and wage records, and is satisfied on the evidence, that the applicant is actively and lawfully operating a business in Australia. The requirement in r.5.19(3)(b)(ii) is therefore met

17. The nominator was not granted the most recent business sponsorship on the basis of operating a business outside Australia. The requirement in r.5.19(3)(b)(iii) is therefore met.

18. Given the above, the requirements in r.5.19(3)(b) are met.

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

19. 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.

20. In this case, r.5.19(3)(c)(i) is the relevant provision. This nomination was lodged on 2 December 2016. The nominee was granted the Subclass 457 visa on 3 October 2014 to work for the applicant in the nominated occupation of Accommodation and Hospitality Managers (nec) – ANZSCO 141999 (Backpackers Manager).

21. The Tribunal has before it PAYG payment summaries for nominee for 2015, 2016 and 2017. Also provided was a letter from the employer confirming the nominee’s periods of leave and the nominee’s bank statements showing regular receipt of wages by cheque. The Tribunal also had regard to the Director’s oral evidence about the nominee’s employment, which is detailed further below. On the evidence before it, the Tribunal is satisfied that the nominee has been employed on a full time basis in Australia for the relevant two-year period. 

22. The Tribunal has next considered whether the nominee was employed in the position for which he holds the 457 visa. As noted above, the nominee was nominated to work in the position associated with the occupation of Backpackers Manager.

23. As noted above, the delegate found that the nominee was not employed in the relevant position for two years. The delegate’s findings were based on information obtained during monitoring of the applicant by the Australian Border Force (ABF) that indicated the nominee was undertaking cleaning/housekeeper duties whilst employed by the applicant.

24. When the above concerns were discussed with the Director at the hearing, she explained that the nominee, as the only full time employee, has been managing all the operations of the Gecko Lodge. She stated that the hostel experienced a downturn in visitors and that during the slow periods they did not hire a cleaner and the nominee undertook some cleaning duties. She gave evidence that Gecko Lodge is a small hostel which consists of 8 rooms. She stated that during the time they did not have a cleaner the nominee helped out by doing some general cleaning.

25. The Director stated that she promptly hired a cleaner after the officer informed her that the nominee was not permitted to undertake cleaning tasks. When asked how many hours the nominee spent on cleaning duties, she stated that it would have been about one to two hours in the morning. The Director gave evidence that the rest of the time he attended to various matters, including the following, responding to enquiries by telephone and email, setting rates, analysing bills, recording income and expenses and managing the hostel’s budget. She gave evidence that the nominee was also responsible for liaising with tradespersons and arranging maintenance, supervising the contractor’s work, providing information to the backpackers about the area, cooperating with local authorities and other general tasks associated with managing the day-to-day operations of backpacker’s accommodation.

26. The Tribunal received supporting documents, including email correspondence, letters of appreciation, reviews, correspondence and other documents confirming that the nominee undertook the types of tasks described by the Director at the hearing. The Tribunal also took evidence from the nominee about the types of tasks he performed and the time he spent undertaking cleaning duties, which entirely consistent with the Director’s evidence.

27. The Tribunal also had regard to the information set out in the notice of intention to take action that was issued by ABF on 21 March 2016. It was recorded that during the interview with the nominee he confirmed his position as the manager of the Gecko Lodge and said he undertook the duties set out in the position description. The Tribunal notes that the duties referred to in the notice, which formed part of the 457-nomination, were entirely consistent with the types of tasks performed by the nominee in the role of Backpacker Manager as described by the Director at the hearing. The notice further indicates that in addition to his managerial duties the nominee also indicated that he had undertaken some cleaning tasks, such as cleaning the common areas, emptying rubbish and shopping for supplies.

28. The evidence before the Tribunal, which the applicant does not dispute, is that the nominee undertook cleaning type tasks during his employment with the nominator.

29. The representative submitted at the hearing that very limited time was spent undertaking cleaning tasks and that those tasks were incidental to the management of the Lodge. While the Tribunal accepts that the cleaning type tasks were limited to one or two hours a day as indicated by the Director, and confirmed by the nominee in his evidence, the Tribunal does not accept that this was incidental to the role of Backpacker Manager. The Tribunal considers the role to be a managerial one, which involves carrying out higher level tasks associated with managing, organising and controlling the operations of backpackers accommodation. Incidental tasks of accommodation and hospitality managers may include some administrative type tasks, however, physical cleaning of commercial accommodation falls squarely within the types of tasks performed by a Commercial Housekeeper (ANZSCO 811411) and is not consistent with the types of tasks performed by a designated Accommodation Manager.

30. In considering the evidence overall however, the Tribunal considers that the cleaning tasks undertaken by the nominee during the relevant employment, were for a limited period and for limited hours. The evidence before the Tribunal, including the information in the notice of intention to take action, indicates that the applicant, during the period of employment as the holder of a 457 visa, undertook the full range of tasks set out in the position description provided with the 457 nomination. The concern for the monitoring officer was that the nominee was also undertaking additional tasks that were not consistent with the nominated role.

31. The Tribunal has considered the applicant’s failure to comply with the sponsorship obligation to ensure that the nominee works only in the nominated occupation further below. For the purposes of the requirement in r.5.19(3)(c)(i), however, the Tribunal has limited its consideration to whether the nominee’s employment for the relevant period was in the position for which he was nominated, namely Backpackers Manager. After considering the totality of the evidence, the Tribunal is satisfied that the nominee’s primary responsibility, during his employment as the holder of a 457 visa, was to manage, organise and control the operations of the Gecko lodge. The Tribunal is satisfied that the tasks undertaken by the nominee, with the exception of the limited additional cleaning tasks, were consistent with the position for which he held the 457 visa.

32. On the totality of the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the position for which he holds the 457 visa for a period of at least 2 years in the 3 years before the nomination was made. 

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

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

34. 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.

35. The applicant has provided to the Tribunal a current signed contract of employment in respect of the nominee dated 6 July 2018. The contract, which sets out the terms and conditions of employment, provides a term of two years employment from the date of the visa grant. 

36. Employment records for the nominee indicate that the nominator has been paying the specified wages to the nominee throughout his employment in the position as the holder of a 457 visa. The most recent financial reports also indicate that the nominator is operating profitably.

37. The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.

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

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

39. 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.

40. The employment contract indicates that the nominee’s base salary is $55,328 plus 9.5% superannuation based on 38 hours a week. There is no Australian working at the same location as a Backpackers Manager.

41. Various supporting documents were provided to the Tribunal, including market salary data and position vacancies, in support of the submission that the applicant’s terms and conditions of employment are not less favourable. Employment Outlook and Payscale data indicate that the base salary for Motel Managers, which is in the same minor group in ANZSCO (Accommodation and Hospitality Managers), is between $31,000 and $74,500, with the median being $49,500. Position vacancies for hostel mangers in regional areas, including Alice Springs in the Northern Territory, indicate that the median salary is between $54,000 and $55,000. In considering this evidence, the Tribunal is satisfied the nominee’s base salary is within the range of that normally paid to a Backpackers Manager.

42. Having had regard to the terms and conditions of employment as set out in the employment contract, and in considering the evidence overall, the Tribunal is satisfied that the terms and condition applicable to the nominated position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

43. Given the above, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

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

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

45. The period of the most recent sponsorship approval is between 12 August 2014 and 12 August 2017. It was submitted that the nominator made a commitment to meeting benchmark A by paying 2% of its payroll to an authorised training fund: Charles Darwin University. The Tribunal received receipts issued by Charles Darwin University Foundation confirming payments made by the nominator towards the University’s Training Benchmark Fund as follows: $1437 on 18 July 2014, $2,900 on 30 September 2016 and $1,600 on 5 July 2018.

46. The nominator’s payroll in each year of its approval as a standard business sponsor, as indicated by the financial documents and supporting letter from the Accountant is as follows: $72,578 between 12 August 2014 and 11 August 2015, $68,061 between 12 August 2015 and 11 August 2016 and $75,062 between 12 August 2016 and 11 August 2017. The Tribunal finds that 2% in each relevant period is $1451, $1361 and $1501 respectively.

47. The requirement to fulfil the training commitment commences upon the employment of any 457 visa holders. In this case, the nominator commenced employing a 457 visa holder (the nominee) on 3 October 2014.

48. In assessing the evidence regarding payments made to the training fund, the Tribunal notes that the payment made by the nominator on 18 July 2014 was prior to the period of its approval as a standard business sponsor and the Tribunal has therefore excluded it from the calculations.

49. In relation to the payment made on 30 September 2016 of $2900 on 30 September 2016, given the overlap between the periods of approval as a sponsor and when the nominator employed a 457 visa holder, it is reasonable to calculate this payment towards the 2014/2015 and 2015/2016 periods of approval. The Tribunal calculated the total payment the nominator was required to make to the training fund in the first two years of approval to be $2812. As the payment of $2900 exceeds this amount, the Tribunal is satisfied that the nominator has fulfilled their training obligations in the first two years. In respect of the third year, the applicant was required to make a payment of $1501, or slightly less, by no later than 11 August 2017. The applicant did not do this, and the evidence before the Tribunal indicates that a payment to the training fund of $1600 was not made until 11 months later. Technically, the applicant has not fulfilled the commitment relating to meeting the training requirements in each year of its approval as a sponsor. Nevertheless, the Tribunal considers it reasonable in the circumstances to disregard subparagraph (i) given that the nominator fulfilled its training commitment in two of the three years and the total amounts paid to the relevant industry fund exceeded the total payable for the periods of the sponsorship approval.

1. The Tribunal is also satisfied that the applicant has kept the required records showing that they have complied with their sponsorship obligation relating to the training requirement.

2. Given the above, the Tribunal finds that the requirements of r.5.19(3)(f) are met.

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

3. 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. 

4. The definition of ‘adverse information’[1] includes any adverse information relevant to a person’s suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (as defined in r.2.57(1) of the Regulations) for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law or having become insolvent.

   [1] As in force immediately before 18 March 2018, as provided for in cl. 6703 of Schedule 13 to the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (F2018L00262).

5. The matters specified in r.1.13A(2) include immigration law, industrial relations and occupational health and safety, discrimination, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage. 

6. The definition also specifies that the ‘conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the last 3 years’ – see r.1.13A(3). 

7. Regulation 2.57(1) provides that a ‘competent authority’ means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.

8. In this case, on 13 July 2016, the applicant was sanctioned under s.140M(1)(c) of the Act by ABF for breach of its sponsorship obligations in r.2.82 (failure to keep records), r.2.83 (provide records and information to the Minister) and r.2.86 (ensure sponsored person works only in the nominated occupation). The sanction imposed was a bar of six-months from sponsoring additional employees under the 457-visa programme. An infringement notice was also issued for the applicant’s failure to comply with r.2.86.

9. The Tribunal is satisfied on the evidence that the sanction imposed by ABF is relevant to the applicant’s suitability as a nominator, within the meaning of r.5.19 of the Regulations, and includes information that the applicant has been the subject of an administrative action by a competent authority for a possible contravention of a law relating to immigration. The Tribunal also finds that the administrative action occurred within the previous three years. The Tribunal accordingly finds that there is adverse information, as defined in r.1.13A, that is known to Immigration about the applicant. It follows that r.5.19(3)(g)(i) is not satisfied.

10. The Tribunal has next considered whether it is reasonable to disregard the adverse information. 

11. The Tribunal has had regard to the submissions and supporting documents provided in support of the request to disregard the adverse information. It was submitted that the Director has admitted her mistake and that she did not deliberately or intentionally breach the sponsorship obligations. It was also submitted that upon being informed that the nominee cannot undertake cleaning duties, the Director promptly hired a casual cleaner. The Tribunal received evidence of the employment of a cleaner. It was submitted that the nominee’s tasks, since the monitoring, has been limited to only those consistent with the occupation of a Backpacker Manager.

12. It was also submitted that the applicant has employed the nominee since 2010, which is a period of over 8 years, and that if the applicant is unable to maintain the employment of the nominee, the business and the nominee will experience significant hardship. It was submitted that the nominee has become highly competent in effectively managing the operations of the Lodge and that the business would struggle to find another person to fill that role. It was submitted that the Director has come to rely entirely on the nominee to operate the Lodge as she has another business that she has to manage, a mango farm, and that it would be difficult for her to manage both businesses. Information was provided indicating that occupation of accommodation manager is a priority occupation for the Northern Territory government and is considered as one of the occupations that are difficult to fill in the Northern Territory.

13. It was also submitted that the nominee has a young family, and that he, his spouse and their young daughter have established themselves in the Northern Territory. It was submitted that the nominee has worked hard over the last 8 years to ensure that the Gecko Lodge is financially viable. The nominee and his family are known by, and participate in, the local community. It was submitted that the Gecko Lodge had received very positive reviews due to the efforts of the nominee and supporting information was provided to the Tribunal indicating the same. It was also submitted that if the nominee loses his employment, he and his family will face an uncertain future and are likely to experience financial hardship.

14. At the hearing, the Director reiterated the reasons set out in the written submissions. She stated that the nominee had become like family and when the government increased the taxes for backpackers, and they experienced a downturn in visitors, the nominee helped with the cleaning. She indicated that the cleaning tasks undertaken by the nominee during that time was minimal. The Director appeared very apologetic and acknowledged her mistake. She stated that she paid the infringement fee promptly and hired a casual cleaner.

15. The Tribunal has considered the evidence before it as follows. While the Tribunal considers it the responsibility of the Director to ensure that she informs herself of the sponsorship obligations and complies with them, the Tribunal also considers that there are strong factors in the circumstances of this case, which when considered in totality, weigh in favour of disregarding the adverse information.

16. The Tribunal notes that the sanction under s.140M barring the applicant for six months from utilising the 457 visa programme, occurred over two years and four months ago. The Tribunal accepts that since that time, the applicant has kept the required records, has employed a casual cleaner and that the nominee has only undertaken tasks consistent with the occupation Backpackers Manager. The Tribunal is also satisfied that the applicant and the nominee would experience hardship, for the reasons they have stated, if the nominee is unable to remain employed in the positon.  

17. In the circumstances, the Tribunal considers it reasonable to disregard the adverse information. The applicant therefore meets r.5.19(3)(g)(ii). Accordingly, the requirement in r.5.19(3)(g) is met.

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

18. 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.

19. There is also no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with applicable workplace relations laws. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(h) is met.

    Conclusion

20. 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

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

    R. Skaros
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

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

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

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

    Temporary Residence Transition nomination

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

    (a)the application for approval:

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

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

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

    (A)is listed in ANZSCO; and

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

    (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.