HUMPHRIS NURSERY PTY LTD ATF HUMPHRIS FAMILY TRUST (Migration)

[2019] AATA 6354

HUMPHRIS NURSERY PTY LTD ATF HUMPHRIS FAMILY TRUST (Migration) [2019] AATA 6354 (22 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HUMPHRIS NURSERY PTY LTD ATF HUMPHRIS FAMILY TRUST

CASE NUMBER:  1812839

DIBP REFERENCE(S):  BCC2017/1143264

MEMBER:Susan Reece Jones

DATE:22 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2019 at 8:58am

CATCHWORDS

MIGRATION – nomination – Temporary Residence Transition – nurseryperson – training requirements met – financial capacity to continue to employ nominee for 2 years – nominee to be employed full time for 2 years – possibility of employment extension not precluded – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 245AR(1), 359(2)
Migration Regulations 1994 (Cth), rr 2.87B, 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 17 April 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).

2. The applicant applied for approval on 24 March 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 (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) )(f)(i)(A) and 5.19 (3)(f)(i)(B) (being the Training Benchmark conditions) of the Regulations because the applicant did not provide any details or quantifiable evidence to demonstrate fulfilment of any commitments made in relation to the training requirements during the period of the nominator’s most recent approval as a standard business sponsor.

5.    As the nominator’s most recent approval as a standard business sponsor (SBS) was on 16 November 2015 and it is valid from 16 November 2015 to 15 November 2020, the nominator needed to demonstrate that it has fulfilled their commitment to provide training as required by Regulation 2.87B for each fiscal year from 16 November 2015.

6.    The delegate stated that the applicant had provided evidence of training expenditure for the  2015 / 2016 period; however, it did not provide evidence of training expenditure for 2016 to 2017, despite the Department’s request.

7.    Following refusal of the nomination by the Department, the Tribunal received an application for review on 4 May 2017. It was signed on behalf of the applicant by its General Manager, Mr Andrew White, and specified that the applicant’s appointed registered migration agent, Mr Ben Watt, continued to be Representative and authorised recipient for correspondence.

8. On 16 July 2019, the Tribunal wrote to Mr White via the Representative pursuant to s.359(2), to invite him to provide updated and current information demonstrating that the applicant met all of the criteria in r.5.19(3). The Tribunal provided examples of the kinds of information with some additional information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination.

9.    On 30 July 2019, the Tribunal received the following material from the applicant’s Representative:

Financial Status 

• Employment Contract of General Manager, Mr White

• Evidence of Identity: Mr Andrew White

• ASIC Company Extract

• Financial Statements 2018

• Business Activity Statements:

  o   1 Jul 2018 to 30 Sep 2018

  o   1 Oct 2018 to 31 Dec 2018

  o   1 January to 30 March 2019

• Organisational & Operational structure. July 2019

Nominee

• Position Description    

• Employment Contract  

• Letter confirming continued employment  

• Evidence of Salary July 2014 to June 2017   

• 2 Payslips  

Training

• Training Invoices: 2016 to 2017

• Training Invoices: 2015 to 2016

• Training expenditure summary 2016 to 2017

1. Also contained in its submissions to the Tribunal of 30 July 2019 was a powerpoint document entitled: “When Bureaucracy needs a reset …..Local Family, local business disadvantaged by red tape.”  It “calls” for government help to confirm the status of the nominee and implies that the refusal of the application by the Department is a government / bureaucracy matter and that the applicant has been disadvantaged by red tape.

2. The requirements under the legislation are clear and it is incumbent upon an applicant to provide the Department with sufficient verifiable evidence in its application. The applicant is a substantial business and is well resourced and has the capacity to ensure that it does comply in full with the documentation and verifiable evidence sought by the Department .To imply that the applicant has been disadvantaged by the  Department’s decision is, in the Tribunal’s view, both misleading and misguided.                 In short, the applicant did not provide sufficient evidence in support of its application in the first place (including failing to respond to the Department’s requests for further information).  The applicant in this case, is wholly accountable for the Department‘s decision to refuse the nomination. In summary, if a nominator wishes to submit an application in support of a visa nominee, then it must comply with the requirements of the law and provide sufficient detail and verifiable proof so that the Department can make its decision in a timely manner. 

3. In the submission to the Tribunal of 30 July 2019, the Representative also undertook to provide additional material to the Tribunal.  On 26 August 2019, having received no further material, the Tribunal contacted the Representative – which the Tribunal was not obligated to do - and was advised that the material would be provided to the Tribunal in a matter of a few days. The Tribunal received no further document until 22 October 2019.

4. The Tribunal set down the hearing for 20 September 2019, following which the applicant requested a delay because its accounts payable manager and payroll officer, Mrs Kerstie Bell, was going to be on annual leave.  

5. From the material provided by the applicant’s agent on 30 July 2019, it is clear to the Tribunal that the applicant is not a small enterprise. It is a major employer with over 100 employees and a turnover at the time in excess of $14m per annum. This means that the applicant has significant resources and sufficient capacity to ensure that submissions are procedurally correct, submitted in a timely manner and are provided in such form that addresses each of the legal matters in issue. Nevertheless, the Tribunal granted the applicant’s request and rescheduled the hearing. The applicant then submitted a substantial quantity of additional material to the Tribunal on 22 October 2019 and the hearing proceeded on 25 October 2019.

6. The Tribunal received oral evidence from Mr Andrew White, General Manager, Mrs Kerstie Bell, Accounts Manager, and Mr Falgun Patel, the nominee. The applicant was represented in relation to the review by its registered migration agent Mr Ben Watt. The  applicant’s Managing Director, Mr Barry Humphris attended the hearing but declined to give evidence,

7. Following the hearing, on 1 November 2019 the applicant provided, inter alia, further submissions to the Tribunal including:

   Financial Status

   ·  Financial Statements 2014, 2015, 2016, 2017, 2018

   ·  Certificate of Incorporation

   ·  Trust Deed

   ·  ABN status

   ·  Certificate of Incorporation

   ·  Visa Grant letter

   ·  Material re location of business and activities

   ·  Letter from Mr Barry Humphris, Managing Director

   ·  Submission from Mr Andrew White, General Manager 

   ·  Payroll wages summary for 2017, 2018,2019

• Multiple Apprenticeship Employment and Training Contracts  

• Updated organisation chart detailing status of all Employees

• Letter from Accountant HMH Advisory

• Trading invoices including insurance statements

Nominee

• PAYG summaries  2014 -2018

• Employment contracts dated:

  -24 November 2014 (term of 2 years)

  -24 November 2016 (term of 2 years)

  -1 November 2019 (ongoing)

• PAYG Award: dated 28 June 2016  

• Personal background  of the nominee

• Superannuation payments to nominee

• Nominee superannuation fund statement(Tasplan Super)

  Bank statements showing receipt of salary payments

1. 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

1. 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)

1. 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.

2. On the basis of the information in the Department‘s file, the Tribunal is satisfied that the applicant was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

3. The application for approval identifies Mr Falgunbhai PATEL, the nominee who, according to Departmental records, holds a Subclass 457 (Temporary Work (Skilled)) visa valid from 31 March 2017. The occupation identified in the application is a ‘Nurseryperson’ (ANZSCO 362411).

4. The Tribunal is satisfied based on the employment and other documents for the nominee that the occupation identified is the same occupation as that carried out by him as the holder of the Subclass 457 visa. 

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

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

1. 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.

2. Department records confirm that the nominator was the standard business sponsor who last identified Mr.Patel, the nominee, in the nomination under s.140GB of the Act. The nominator was approved to be a standard business sponsor on 16 November 2015 for a period of five years.

3. Operating a wholesale nursery and plant-growing business, the applicant is a family enterprise, which has been operating for over 160 years and is located on the outskirts of Melbourne, Victoria. Both General Manager, Mr White, and Accounts Manager, Mrs Bell, confirmed that the nominator is a going concern and continuing to invest heavily in the expansion of the business.

4. At hearing, on behalf of the applicant, Mr White confirmed that there have been no material changes in the  operations of the organisation. The applicant remains the same entity operated by the  same family, located in the same location and continues to expand, employing in excess of 100 employees either on a full or part time or seasonal worker basis.  

5. The Tribunal has been provided with current information as evidence that applicant is actively and lawfully operating a business in Australia, including:

   ·Certificate of Incorporation dated 3 February 1984

   ·ASIC company current extract

   ·Registered business certificate

   ·Trust Deed dated 1 March 1984

   ·Financial Statements for the financial years ending 2015 – 2019

   ·Business Activity Statements for the quarters between July 2016 and July 2019

   ·Business bank statements, including statements for FY2018 and  FY2019

   ·Payroll and Wages Summary detailing pay item summaries for 2016/2017

6. Following the hearing, the Tribunal also received in the submissions of 1 November 2019,  a letter from the applicant’s accountant, Haines Muir Hill (HMH) Advisory (dated 29 October 2019). Mr Lunardello, Director and Chartered Accountant at HMH Advisory, stated as follows:

   ·     The  applicant has been operating since the 1850's

   ·     HMH has been the Tax Agents and Accountants for the applicant for over 40 years  

   ·     The applicant is family owned and operates in a company structure

   ·     The applicant’s business is wholesaling / producing and distributing a wide range of high-quality plants across Australia

7. Mr Lunardello confirmed to the Tribunal that the applicant has the financial capacity to meet its obligations as business sponsor noting as follows in relation to Year ended 30 June 2019:

   ·Turnover - $14.50 million

   ·Net profit - $1.21 million

   ·Expenditure on wages/salaries - $4.44 million

   ·Expenditure on training - $10,000

   ·Net current asset - $1.31 million

   ·Balance sheet size (total assets) - $7.02 million

   ·Projected payroll for next 12 months $4.55 million

1. The Tribunal has also had regard to Departmental records and is satisfied that the applicant 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).

2. Given the above, the requirement in r.5.19(3)(b) is met.

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

1. 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.

2. In this case, r.5.19(c)(i) is the relevant provision.

3. The  Tribunal is satisfied on the  evidence before it that:

   ·     the nominee commenced working for the applicant on a  casual basis in 2011 while the holder of a student visa [???]; 

   ·     the applicant sought to engage the nominee on permanent basis and the  applicant was granted a 457 visa on 27 February 2015 on the basis of his sponsorship by the applicant as an SBS;

   ·     the applicant’s nomination for a permanent subclass 186 visa by the applicant was made on 24 March 2017;

   ·     the relevant 3-year period is therefore 24 March 2014 to 23 March 2017;            

4. The applicant provided a series of employment agreements for the full-time engagement of the nominee:

   (a)  Agreement #1: dated 24 November 2014 for a period of 2 years (salary $54,125);

   (b)  Agreement #2: dated 24 November 2016 for a period of 2 years (same salary as above);

   (c)  Agreement #3: in the form of a Position Description with remuneration terms attached dated 1 November 2019 (together with a letter from the applicant confirming continued employment of the nominee) specifying a salary of $54,360 (with provision for overtime payments).

5. Notably, the various Employment Agreements for the nominee state that he was engaged as a Grade 4 Nurseryperson (per the Nursery Award) although the visa nomination submitted by the applicant dated 19 December 2014 undertakes that the nominee was to be paid at a Grade 5 rate and at an annual salary of $53,900 per annum.  

6. According to the Nursery Award, payments per hour at a minimum:  

Date of Award	28 June 2016	1 July 2019
Grade 5	$865.20 $22.77 per hour	$952.9 $25.08 per hour
Grade 4	$783.30  $ 20.61 per hour	$862.50 $22.70 per hour

1. From the evidence provided, the Tribunal is satisfied that the nominee has been paid in excess of the visa commitment and the Award Grade 5. Additionally, the applicant provided bank statements of the nominee from 2014 - 2019 showing weekly payments made by the applicant to the nominee and the nominee’s superannuation statement from 2014 – 2019 which also show that the applicant has complied with its obligations to the nominee.

2. Salary payment is also confirmed by the PAYG payment summaries for the nominee (as issued by the applicant) for the financial years from 2015 – 2019 as follows:

PAYG	2015	2016	2017	2018	2019
$52,011	$62,055	$58,960	$56,458	$55,373

1. The Tribunal is satisfied on the evidence before it that the nominee has been employed full time in Australia in the relevant position for at least 2 years of the 3 years before the nomination was made and therefore the requirements of r.5.19(3)(c) are satisfied.

2. 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)

1. 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.

2. In assessing the applicant’s financial statements and the letter from the applicant’s accountants, it is evident that the applicant continues to increase both its sales and profit performance.

2014	2015	2016	2017	2018
Sales	8,059,786	9,028,130	10,108,914	10,508,393	12,787,078
NPAT	898,777	421,591	689,625	761,722	1,266,174

1. Based on the documentary evidence provided on behalf of the applicant, including the  various contracts of employment, the nominee’s PAYG statements, the  applicant’s financial information from 2014 to date, the Tribunal is satisfied that the applicant has the financial capacity to continue to employ the nominee for at least 2 years, that the nominee will continue to be employed on a full time basis for at least 2 years, and that the terms and conditions of employment for the nominee do not expressly exclude the  possibility of extending his period of employment.

2. 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)

1. 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.

2. The applicant provided several organisation charts, the most recent one being dated October 2019.

3. In relation to the Organisation Chart provided to the Tribunal in late October 2019, of the applicant’s 102 Employees, approximately 91 are Australian citizens. The applicant engages 68 Employees on a fulltime basis. In addition, the applicant employs seasonal works and students. This chart makes clear that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee.

4. The Tribunal therefore must be satisfied that the terms and conditions of employment 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 me workplace at the same location.

1. The applicant provided comprehensive information regarding Labour Market Data (accessed 16 September 2019) and also job advertisements (12 September 2019) which show a salary range for a Nurseryperson from $45,516 to $60,000. The most recent contact of employment for the nominee is dated 1 November 2019.  The nominee’s base salary of $54,360 is specified and it also provides that the nominee has access to free accommodation at the site, which at the applicant values on an equivalent market value rental basis at $385 per week or $20,000. 

2. On behalf of the  applicant, Mr White submitted at the hearing that the nominee was engaged because of his qualifications and work ethic which have been recognised to the extent that the nominee is now a manager for a team of 10 employees and manages a large worksite. As noted above, the applicant provides in addition to a salary, on site housing for the nominee (although the nominee is accountable for payment of use of utilities).

3. Given the above, the Tribunal is satisfied that the terms and conditions of employment applicable to the nominated position are 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.

4. Accordingly, the requirement in r.5.19(3)(e) is met.

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

1. 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.

2. Initially, the applicant submitted an Organisation Chart (dated July 2019) which failed to identify the citizenship status of each employee or given the applicant is a family business, to identify which employees may be a family member. The applicant then tendered an updated organisation chart at hearing, which clarified the familial status of selected employees and set out the citizenship status of its large workforce.

3. The Department in its decision noted that the applicant provided limited evidence in support of its Training Benchmark obligations to the extent that the Department had no alternative but to deny the application. 

4. On 21 October 2019, the applicant then submitted to the Tribunal a statement of Apprentices engaged by the applicant since 2016. The applicant confirmed with supporting evidence that each Apprentice:

(a)is an Australia citizen or permanent resident; and

(b)has completed an ATO Tax File Declaration.

1. For each apprentice, the applicant provided a Letter of Employment Offer and Employment Contract.  The applicant further confirmed the status of each apprentice with copies of records from the Victorian Registration & Qualification Authority (VRQA), which provides a Training Contract for each Apprentice to demonstrate that each has met the eligibility criteria as an Apprentice.  Verifiable evidence of the PAYG statements for each Apprentice was also supplied to Tribunal.

2. The Tribunal accepts the additional evidence provided as the training requirements set out in IMMI 13/030 state that expenditure that can count towards Training Benchmark B includes employment of apprentices on an ongoing basis in numbers proportionate to the size of the business. In the Tribunal’s view, the numbers of apprentices meet the requirement of being proportionate to the size of the business.  

3. To meet Training Benchmark B, the applicant must prove recent expenditure by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

4. The Tribunal has had regard to the applicant’s submitted annual financial statements. The Financial Statements show limited expenditure on training its employees relative to the size of the applicant’s business and without the benefit of the apprentice provisions set out in IMMI 13/030, the applicant would not succeed in its application. That said, calculating the payments made to each of the apprentices for each of the years and calculating the Training Benchmark 1% requirement for each relevant financial year establishes that the applicant does exceed the requirement in Training Benchmark B.

5. In addition to fulfilling the commitment relating to training, the Tribunal is also satisfied that applicant has also kept the required records showing that they have complied with their sponsorship obligation relating to the training requirements.

6. In summary, the applicant has engaged Apprentices as follows:    

2016	2017	2018	2018/19	Comments
Simon Lancaster Commenced 4/1/16.	$19,582	$40,859	Tradesperson 30/8/17
Gemma Rowles Commenced 4/1/16.	$18,090	$ 35,367	$13,004	Tradesperson 5/4/18
Cody Blakis Commenced 12/1/16.	$16,154	$32,391	$27,522	Tradesperson 1/11/18
Samara Draper Commenced 21/2/17.	$10,711	$15,667	Resigned 21/12/17
Jack Bateup Commenced 21/2/17.	$10,991	$33,985	$16,167	Resigned 20/11/18
Zach O'Grady Commenced 8/2/18.	$12,362	$26,035	Resigned 2/4/19
Joesph Brak Commenced 26/2/18	$11,907	$37,209
Jonathon Warren Commenced 7/1/19	$17237
Annual total	$53,826	$130,319	$114,447	$96,648
Total Wages⃰	$3,124,110	$3,265,655	$3,758,913	$4,014,179
Total Superannuation	$310,767	$284,948	$328,563	$359,872
Total Payroll	$3,311,471	$ 3,550,603	$4,087,476	$4,374,051
Staff training	$12,247	$4758	$5354	$10,455
Training Benchmark 1%	$33,115	$35,506	$40,874	$43,740

⃰incudes Agency staff costs which, for the purposes of Training Benchmarks, are included in payroll expenditure.

1. Hence, the Tribunal is satisfied on the evidence before it that the applicant has fulfilled commitments made relating to meeting the training requirements during the relevant period.

2. Accordingly, the requirement in r.5.19(3)(f) is met.

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

1. 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. 

2. The Tribunal has reviewed the Department records and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

3. Accordingly, the requirement in r.5.19(3)(g) is met.

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

1. 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.

2. There is no evidence before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or Victoria by the applicant.

3. Accordingly, the requirement in r.5.19(3)(h) is met.

4. 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

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

S. Jones
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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.