Growing Line Pty. Ltd. (Migration)

Growing Line Pty. Ltd. (Migration) [2021] AATA 809 (5 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Growing Line Pty. Ltd.
CASE NUMBER:  1819761
HOME AFFAIRS REFERENCE(S):          BCC2017/4379107
MEMBER:Mary Sheargold
DATE:5 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 05 March 2021 at 12:17pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – genuine need for position – anonymous allegation of fraud by applicant and nominee – no investigation of allegation by department – financial capacity to employ nominee for two years – current contract and recent financial statements provided to tribunal – recovery of business after COVID-19 restrictions – training requirements – expenditure not met for one year of most recent period of standard business sponsorship – reasonable to disregard requirement – continuing expenditure on training – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359, 359A, 376
Migration Regulations 1994 (Cth), rr 2.72, 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 3 July 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 21 November 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains 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 delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(i) of the Regulations because the applicant did not provide any submission to outline why there is a continuing need for the nominated position of a Massage Therapist in its business operations, and therefore could not find that the application identified a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
Ms Jia Di, the General Manager (as well as being a shareholder and former director) of Growing Line Pty Ltd (the applicant) appeared before the Tribunal by video link on 25 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Wei Qin. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent, Ms Roz Germov. Ms Germov attended the Tribunal hearing.
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
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.
On 20 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide updated information in relation to its business. On the same day, Ms Germov wrote to the Tribunal indicating that she had made a significant submission on the applicant’s behalf on 11 November 2020, and requested an updated information request from the Tribunal in the event that any information sought in the 20 November 2020 letter had not been provided on 11 November 2020. The Tribunal notes that Ms Germov’s 11 November 2020 submissions comprised:
·detailed submissions from Ms Germov dated 11 November 2020;
·a copy of the genuine position statement submitted with the application to sponsor Ms Qin’s Subclass 457 visa in 2015;
·a statement from Ms Di outlining the continuing need to employ a Massage Therapist in the applicant’s business;
·a current and historical company extract from the Australian Securities and Investments Commission (ASIC) for the applicant dated 20 August 2020;
·evidence of enrolment for the JobKeeper program dated 6 May 2020;
·evidence of a $10,000 cash boost payment from the Victorian Department of Jobs, Precincts and Regions dated 12 May 2020;
·evidence of a $5,000 cash boost payment from the Victorian Department of Jobs, Precincts and Regions dated 30 July 2020;
·evidence of a $5,000 cash boost payment from the Victorian Department of Jobs, Precincts and Regions dated 12 August 2020;
·evidence of a $10,000 cash boost payment from the Victorian Department of Jobs, Precincts and Regions dated 15 October 2020;
·copies of business activity statements (BAS) for each quarter from 1 July 2018 to 30 June 2020;
·copies of detailed financial statements for the applicant’s business for the financial years ending on 30 June 2017, 30 June 2018, and 30 June 2019;
·a letter from the applicant’s accountant dated 26 August 2020;
·an organisational chart for the applicant’s business;
·a draft employment agreement for the applicant’s business;
·evidence of superannuation payments to the nominee from April 2016 to April 2018;
·copies of PAYG statements for the nominee for the financial years ending on 30 June 2019 and 30 June 2018;
·copies of receipts for payments made in relation to training; and
·a copy of the applicant’s certificate of currency for WorkCover insurance for the 2020-21 financial year.
A general response to Ms Germov’s request was sent later on 20 November 2020, advising that if the applicant wished to submit additional documents or provide additional information, it could do so by 4 December 2020 (as indicated in the Tribunal’s letter). The email advised that the application would be referred to a Member for consideration after 4 December 2020.
Ms Germov acknowledged the Tribunal’s email on 20 November 2020. At 12:06pm on 21 January 2021, she wrote to the Tribunal requesting a status update in relation to the matter. At the same time, the Tribunal sent the applicant a further letter, the details of which are set out below.
Non-disclosure certificate issued pursuant to s.376 of the Act
On 4 December 2019, the Department issued a non-disclosure certificate pursuant to s.376 of the Act (the Certificate) in relation to TRIM reference number OPD2019/525645 of the Departmental file as provided to the Tribunal. The Department claimed the document “may disclose or enable a person to ascertain the existence or identity of, a confidential source of information.’
As outlined above, the Tribunal wrote to the applicant on 21 January 2021 stating that the Tribunal found the Certificate to be valid, and invited it to comment on the validity of the Certificate. In that letter, the Tribunal informed the applicant that the Tribunal had the discretion to disclose the information that is subject to the Certificate to the applicant, and noted that the material protected was an anonymous tip-off sent to the Department via its website, alleging fraud by the applicant and the nominee in relation to this application. The Tribunal noted that it considered this document was relevant to its review, and offered the applicant an opportunity to seek a favourable exercise of the Tribunal’s discretion in s.376(3)(b) of the Act to disclose the material to it.
The letter stated that if the applicant wished to make any submissions in relation to the validity of the Certificate and/or as to why the information the subject of the Certificate should be disclosed to it, it should do so in writing by 4 February 2021.
On 4 February 2021, Ms Germov wrote to the Tribunal and provided detailed submissions in favour of the Tribunal exercising its discretion in s.376(3)(b) of the Act to disclose the material subject of the Certificate to it. The Tribunal accepts Ms Germov’s submissions in that regard. For completeness, the Tribunal notes that Ms Germov did not contest the validity of the Certificate.
The Tribunal finds the Certificate to be valid and notes that it exercised its discretion in s.376(3)(b) of the Act to disclose the material the subject of the Certificate to the applicant. A redacted version of the document was provided to the applicant on 8 February 2021.
Invitation to comment on or respond to information pursuant to s.359A of the Act
In its letter dated 21 January 2021, the Tribunal invited the applicant to comment on or respond to certain information that the Tribunal considered would, subject to the applicant’s comment or response, be the reason, or a part of the reason, for affirming the decision under review. The particulars of the information were set out as follows:
·     that Ms Jia Di has been paid more than $60,000 by the nominee, Ms Wei Qin;
·     that the applicant’s business loses money annually, but has not closed down because Ms Di has taken money from Ms Qin to secure her visa
·     that Ms Qin’s actual annual salary is less than $56,000 per annum; and
·     that Ms Qin gave Ms Di $25,000 to deposit in Growing Line Pty Ltd’s account in order to make the turnover and profits for the business increase from an accounting perspective.
The letter told the applicant that this information was relevant to the review because it may indicate that the applicant has acted in contravention of the Act and the Regulations by providing false and misleading information that it has the financial capacity to employ the nominee as a Massage Therapist, and noted that in order for the Tribunal to be satisfied that r.5.19(3)(d)(i) can be met, it must be satisfied that Ms Qin will be employed in the position of Massage Therapist for at least 2 years on terms no less favourable than those that would be granted to an Australian citizen or permanent resident performing the same role at the same location.
The letter told the applicant that if the Tribunal relied on the information obtained by the Tribunal, being that the nominee has been providing cash payments to Ms Di and the applicant to manipulate the turnover and profits for the business from an accounting perspective, it may form the view that this information is adverse. If so, unless the Tribunal considers it would be reasonable to disregard it, this would be the reason, or a part of the reason, for affirming the decision under review.
The applicant was invited to give comments on or respond to the information in writing by 4 February 2021. The letter stated that if the Tribunal did not receive the applicant’s comments or response within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain its views on the information. The letter also noted that the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
In her letter dated 4 February 2021, Ms Germov noted that the allegations in the Tribunal’s letter dated 21 January 2021 “shocked and distressed” her clients (noting Ms Germov also represents the nominee) and that neither Ms Di nor Ms Qin “have any idea of who would have made [the allegations] and why. As far as they know there are no persons who hold a grudge against them or the nominator. The allegations are unreservedly denied.”
Relevantly, Ms Germov also submitted that the Department received the information on 8 November 2019, “but as far as the nominator is aware there has not been any action taken by [the Department] to investigate the nominator in relation to Ms Wu’s application as a possible visa cancellation matter. It is submitted that if the information had been considered credible, [the Department] would have instigated such an investigation.” The Tribunal gives weight to these submissions and notes the absence of a Departmental investigation into the allegations.
The Tribunal invited the applicant to a hearing in order to discuss this matter further as well as to consider whether the applicant met all the criteria in r.5.19(3) given the passage of time from Ms Germov’s original submissions and the response to the Tribunal’s letter of 21 January 2021.
After the hearing, the applicant provided evidence of recent BAS to further support its claims that it has the financial capacity to employ the nominee on a full-time basis for at least 2 years. The Tribunal has relied on all the submissions and documents received from Ms Germov on 11 November 2020, the response to the Tribunal’s letter dated 21 January 2021, the evidence at the hearing, the post-hearing submissions, and at the request of Ms Germov, documents in the Departmental file, in reaching its findings.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. The letter from the Department to the applicant dated 21 November 2017 indicates that the nomination application fee has been paid.
The application for approval identifies Ms Wei Qin, the nominee who, according to Departmental records, held a Subclass 457 visa from 23 September 2015 that was granted on the basis of satisfying cl.457.223(4) of Schedule 2 to the Regulations.
The application for approval identifies the occupation of Massage Therapist, ANZSCO 411611. Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by her as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (4116) as the occupation carried out by the nominee whilst she held the Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
Departmental records confirm that the nominator was the standard business sponsor who last identified Ms Qin in a nomination made under s.140GB of the Act. The nominator was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h), or r.2.68(i).
The applicant has provided the Tribunal with evidence of its registration and current status with ASIC, BAS, detailed financial statements, and other information about the business’s activities.
Based on the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 21 November 2017.
The nominee was granted a Subclass 457 visa in the nominated occupation of Massage Therapist on 23 September 2015, sponsored by the applicant. The applicant was approved as a standard business sponsor from 14 January 2015 to 14 January 2018.
The applicant has provided the Department and the Tribunal with evidence of PAYG statements for the nominee for each financial year ending on 30 June from 2016 to 2019 inclusive. The Tribunal has considered this evidence along with the employment contract provided in relation to the nominee and the submissions made by Ms Germov, that the Tribunal accepts, noting that the nominee has worked full time in the position for over 5 years, and that the application for approval was made after the nominee had been employed in the position for over 2 years.
Based on all the evidence before it, the Tribunal is satisfied that the nominee worked in the nominated position for at least 2 of the 3 years immediately before the application was made. Therefore, on the basis of all the evidence before it, the Tribunal finds that the requirement in r.5.19(3)(c)(i) is met.
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)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
The applicant has provided the Department with a copy of the employment contract between the applicant and the nominee dated 4 November 2017 (the employment contract). The employment contract states that the nominee will be employed on a full-time basis for “at least three years”, and notes that the contract commences upon the approval of the nominee’s Subclass 186 visa application. Therefore, the Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment beyond the initial minimum two year term expressed in the employment contract.
At the hearing, the Tribunal questioned Ms Di regarding the allegations in the anonymous tip-off to the Department, observing its concerns that Ms Qin had provided payments to the business in order to increase its turnover and profitability. Ms Di strenuously denied the allegations and noted that both she and the nominee have conducted themselves in accordance with the law at all times. The Tribunal accepts Ms Di’s evidence in this regard, and notes again the absence of a Departmental investigation into the alleged fraud. The Tribunal does not give weight to the allegations in the anonymous tip-off provided on the Department’s website.
The Tribunal has considered the detailed financial statements for the applicant’s business, BAS provided for the most recent 10 quarters, as well as the PAYG summaries for the nominee for each of the financial years ending on 30 June from 2016 to 2019 inclusive. The Tribunal notes the applicant qualified for JobKeeper payments for relevant staff, and its cash flow boost payments from the Victorian government during the Covid-19 pandemic. The Tribunal accepts Ms Di’s and Ms Qin’s evidence at the hearing that business has recovered well since the end of the lockdown in October 2020, and notes this is corroborated by the sales figures in the BAS provided after the hearing. Having considered all the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to continue paying the nominee’s full time salary for at least 2 years.

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)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal notes that the employment contract provides for a salary of $56,000 per annum. The employment contract notes that superannuation is payable at the applicable rate required by law. The Tribunal notes that according to PayScale, the average annual salary for a massage therapist in Melbourne is $48,952, with a base salary range from $29,000 to $57,000 per annum. The Tribunal notes Ms Germov’s submissions that the applicant uses a standard form contract with mirroring pay provisions for all staff regardless of their residency status. Based on the evidence before it, the Tribunal finds the nominee’s salary to be no less favourable than the salary that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave, notice, and termination are in accordance with the minimum standards set out in the National Employment Standards and relevant workplace relations legislation.
Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The applicant was most recently approved as a standard business sponsor from 14 January 2015 to 14 January 2018. In accordance with the requirements of r.2.87B(2), the applicant must demonstrate that it has met the training requirements set out in IMMI 13/030 in each year of its most recent standard business sponsorship approval. The Tribunal notes that the applicant seeks to fulfil the obligations under Training Benchmark B as set out in that legislative instrument.
Ms Germov submits that the applicant relies on its total payroll expenditure calculated on a financial year basis as follows:
·2015-2016: $120,022;
·2016-2017: $188,713; and
·2017-2018: $241,141.
Ms Germov directed the Tribunal to receipts for training provided in the Departmental file to verify the training expenditure. The Tribunal makes the following findings:
·in the first year of its most recent standard business sponsorship approval, the applicant spent $1,250 on training. 1% of the applicant’s total payroll in that year is $1,200.22, therefore the requirement under Training Benchmark B has been met;
·in the second year of its most recent standard business sponsorship approval, the applicant spent $1,950 on training. 1% of the applicant’s total payroll in that year is $1,887.13, therefore the requirement under Training Benchmark B has been met; and
·in the third year of its most recent standard business sponsorship approval, the applicant spent $2,100 on training. 1% of the applicant’s total payroll in that year is $2,411.41, therefore the requirement under Training Benchmark B has not been met.
Based on this evidence, the requirement in r.5.19(3)(f)(i) is not met. However, the Tribunal notes that the applicant has continued to invest in training even beyond the period of its most recent standard business sponsorship approval. The applicant has provided the Tribunal with evidence that it has made payments of over $5,000 in relation to training in recent years. The Tribunal notes that the applicant has demonstrated its good faith intentions to comply with its obligations in respect of training, and finds it is reasonable to disregard the requirement in r.5.19(3)(f)(i): r.5.19(3)(f)(ii).
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. The Tribunal notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.
Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that 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.
The delegate refused to approve the nomination because it was found that the applicant had not proven its genuine need to continue to employ the nominee in the nominated position of Massage Therapist. The Tribunal notes Ms Germov’s submissions in relation to this issue. In summary, Ms Germov submits that the intent of the addition of this requirement in r.5.19(3) was not to require an applicant to justify the need for the position afresh, but rather that the requirement was incorporated to mirror the requirement in r.2.72(10)(f), ensuring that the position is indeed genuinely required within the applicant’s business.
Ms Germov submits that Departmental policy specifies certain factors to be taken into account when assessing whether the position is genuinely required, or whether it has been created to facilitate a migration outcome for the nominee, and that this would need to be proven to satisfy r.2.72(10)(f) for nomination approval for a Subclass 457 visa. Ms Germov submits that if there has been no change in the duties of the position or change in the employer’s business, then this requirement is satisfied for the purposes of r.5.19(3)(i) as it was at the time the r.2.72 nomination application was lodged. The Tribunal accepts Ms Germov’s submissions in this respect.
The Tribunal notes that the applicant has provided its genuine position statement lodged with the Department at the time the nomination for sponsorship of Ms Qin’s Subclass 457 visa was granted, and for completeness, has provided an updated version of that document attesting to the continued and genuine need to employ a Massage Therapist with Ms Qin’s qualifications to work within the applicant’s business. At the hearing, Ms Di emphasised how difficult it was to employ a massage therapist qualified in Chinese massage therapy as well as holding diploma level qualifications in massage therapy. The organisational chart for the applicant’s business shows the need for the position held by Ms Qin. Ms Germov has made submissions regarding the roles and duties of the Massage Therapist position within the applicant’s business and how they correspond to the position description for a Massage Therapist in ANZSCO, and the Tribunal accepts those submissions.
Based on the evidence and submissions before it, it is plain to the Tribunal that the applicant has a genuine need to employ a Massage Therapist within its business. Therefore, the Tribunal finds that the applicant has a genuine need to employ a Massage Therapist, and the requirement in r.5.19(3)(i) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mary Sheargold
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
(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.

[2021] AATA 809

5 March 2021

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Immigration

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