Islam Kazi Muzharul (Migration)

[2022] AATA 3289

Islam Kazi Muzharul (Migration) [2022] AATA 3289 (9 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Islam Kazi Muzharul

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1911784

HOME AFFAIRS REFERENCE(S):         BCC2018/975418

MEMBER:Warren Stooke AM

DATE:9 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 9 August 2022 at 4:17pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – occupation of Retail Buyer – training benchmarks – training expenditure information – tasks and responsibilities of the position – salary discrepancy – financial capacity to employ the nominee for at least two years – updated financial information – employment terms and conditions no less favourable – decision under review set aside  

LEGISLATION

Fair Work Act 2009
Migration Act 1958, s 245
Migration Amendment (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994, rr 1.13, 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 Home Affairs on 3 May 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 28 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 that the applicant’s nomination did not satisfy reg 5.19(3) of the Regulations because the applicant did not provide evidence to demonstrate the Training Benchmark A had been met and a financial capacity to pay the nominee’s salary of $58,000 per annum for the next 2 years.

5. The applicant appeared before the Tribunal on 19 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sarifdeen Raziudeen, the nominee for the occupation of Retail Buyer – ANZSCO Code: 639211.  

6. The applicant stated that he understood the delegate’s decision was made on the grounds that the business did not submit all the required documentation to support the nomination.

7. The applicant stated that he had read the delegate’s decision and provided a copy of the  decision to the Tribunal with the application for review.

8. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

9. 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

10. 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 reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

11. The applicant provided evidence that the business was registered with ASIC on 22 May 2000 and assigned an ABN: 94 224 569 258 and registered for GST 1 July 2000.

12. The applicant provided evidence of a lease agreement with the Central West Shopping Centre Braybook dated 4 August 2016.

13. The applicant provided evidence that he came to Australia in 1990 and opened a small clothing business and market shop in Frankston and subsequently Clayton, with his brother.

14. The applicant stated that in 1990 he also opened a shop in Geelong and in 2001 a shop in Werribee Plaza, with his four younger brothers.

15. The applicant stated that he commenced a subcontract franchise in shopping centres, but in 2008, due to a loss of business he retained one shop and one store.

16. In 2014, the applicant stated he opened a shop in Braybrook shopping centre and Deerpark with buying from overseas. In this same year, the applicant stated that he needed a professional buyer with overseas buying experience and he advertised the position on Gumtree.

17. The applicant provided evidence that the salary offered in 2017 was $54,000 and is $60,000 currently for a 37.5 hours per week.

18. The applicant provided a subsequent contract of employment dated 9 February 2022 for a fixed term of 2 years to commence upon the grant of a 186 visa for the position of Retail Buyer based at Central West Shopping Centre Braybrook based upon a salary of $60,000 plus 10 per cent superannuation. The contract was signed on 18 February 2022.

19. The applicant stated that the nominee was employed by the business on 9 October 2017.

20. The applicant stated that the business is open 7 days per week and that he has 7 employees with casuals and part time employees paid $22.00 per hour, where the underpinning award is the Retail General Award.

21. The applicant provided evidence that employees are provided with a Fair Work Information Statement at the time of employment.

22. The applicant provided training expenditure information, as follows:

    a.Sydney Institute TAFE: 19 May 2016 - $850

    b.Sydney Institute TAFE: 7 June 2016 - $200

    c.Sydney Institute TAFE: 27 Feb 2018 - $3,250

    d.Sydney Institute TAFE: 20 June 2019 - $500

    e.Kangan: 2018-2019 - $1975.46

    f.Kangan: 2019-2020 - $2,396.18

23. The applicant provided an organisation chart that included the owner and the nominee as a Retail Buyer.

24. The applicant submitted evidence that the nominee undertakes the following duties in the nominated occupation of Retail Buyer – ANZSCO Code: 639211.

    • Monitoring sales data and stock levels, and studying trade, manufacturers and market information to keep informed of changing market conditions

    • Negotiating purchase, promotion and supply arrangements with suppliers

    • Designing and implementing pricing, marketing, promotional and display strategies

    • Liaising with management on long-term planning and sales promotions

    • Anticipating consumer trends and determining quantity, style and quality of goods to be purchase.

25. The applicant provided the Tribunal with financial information for the financial years 2017 to 2021, as follows:

2017	2018	2019	2020	2021
Tot Income	$382,693	$425,277	$430,885	$456,943	$357,688
Tot Expenses	$319,353	$389,520	$380,793	$385,202	$333,348
Wages	$90,661	$117,750	$113,035	$109,415	$76,938
Superannuation	$8,713	$11,186	$10,738	$10,394	$7,034
Assets	$206,272	$159,651	$199,200	$197,366	$251,772
Liabilities	$68,997	$23,052	$189,517	$125,414	$234,191

Evidence of Sarifdeen Raziudeen (the nominee for the position)

1. The nominee provided evidence that he understood the visa nominated position of Retail Buyer was refused by the delegate because since the employer did not have a profit and loss statement and training benchmarks supporting evidence.

2. The nominee provided evidence that he completed an IELTS English language test on 24 April 2017 with an overall score of 6.5.

3. The nominee stated that he commenced employment with Kazi on a 457 visa on 16 February 2017 and that his current salary was $60,000.

4. The nominee stated that his duties included the following tasks and responsibilities:

   a.Monitor customer survey data;

   b.Negotiate purchases with suppliers;

   c.Long term planning and sales promotion;

   d.Stock taking;

   e.Visit suppliers and negotiate the price;

   f.Market strategies and working on long term plans for customer and seasonal budgets.

   Representative Submission

5. On 2 August 2022, the Representative for the applicant provided the Tribunal with a post hearing explanation to explain the variances in the contracted salary and the remuneration paid to the nominee, with the following submission:

   “1. We refer to the above matter and to the hearing before the Tribunal held via video conference on 19 July 2022.

   2. Further to the request made in the hearing, we take this opportunity to provide brief submissions and further documentation in support of the Applicant’s ongoing and genuine need for the Nominee and of its compliance with subregulations 5.19(3)(d) and 5.19(3)(h) with respect to its prior and ongoing ability to pay Mr Sarifdeen the nominated salary, as per the terms and conditions of its employment agreement.

   3. We submit that there is sufficient evidence to set aside the decision to refuse the nomination, specifically in light of our prior submissions to the Tribunal dated 18 May 2022 made in response to the request to provide updated information dated 28 March 2022. We note that the submission was accompanied by supporting documents provided to the Tribunal on 20 May 2022.

   4. We now provide further context and an outline of circumstances which substantiate the Nominee’s gross annual salary as per his ATO Tax documents for the financial years 2019-2022.

   5. As noted in our prior submission, at the time of lodgement of the Subclass 186 Nomination Application on 28 February 2018 (the 186 Application), the Applicant had a pending Subclass 457 Nomination application (the 457 Nomination) processing with the Department of Home Affairs (the Department). This 457 Nomination was lodged on or about 19 October 2017 and the Nominee was subsequently granted his 457 visa with the Applicant as nominator pursuant to this application on 02 October 2018 (expiry 02 October 2020) (annexure 6). We attach the 457 nomination and visa grant notices specifying that the nominated salary was $56,000 (annexure 6). The Application under review was refused on 03 May 2019.

   6. We refer to the employment agreement submitted in support of the 457 Nomination Application (annexure 1) and note that this agreement was also submitted in support of the 186 Application as evidence of the Nominee’s employment for at least 2 years at the time of application (annexure 2; BCC2018/975418 Folios 33-34). The nominated salary for the position at the time of the 457 application and upon grant was, according to this agreement, $56,000 plus 9.5% superannuation.

   7. A new employment agreement was signed for the purposes of lodging the 186 Application dated 02 October 2017 (annexure 3; AAT File – Part 2 1911784 Folios 131-134). The nominated salary according to this agreement was $58,000 plus 9.5% superannuation. The agreement also contained the clause:
   The agreement commences upon date of approval of the subclass 457
   visa by the Department of Immigration and Border Protection. This
   agreement is initially for four years but is ongoing subject to mutual
   consent beyond that date.

   8. The Applicant concedes that, on the face of the document, the terms of the 2 October 2017 contract – that it “commences upon date of approval of the subclass 457 visa” – state that, upon the date of approval of the 457 visa (subsequently granted 2 October 2018) the per annum salary should have been $58,000. However, we are instructed that the evidence of the 457 contract signed at a gross base rate of pay of $56,000 per annum for a 38 hour week corroborates the Applicant’s instructions and evidence that, at the time of lodging the 186 nomination, the terms of the contract as stated were transposed, in error, from the prior contract by the former agent. We are instructed (both by the Applicant and the Nominee) that it was always the intention of both the Applicant and of the Nominee that this contract, signed in support of the 186 Application, would commence upon the date of approval of the subclass 186 visa by the Department. The
   parties erroneously signed the contract with the abovementioned terms only ever with the intention that it would apply upon grant of the 186 visa.

   9. We are instructed that both the Nominator and the Nominee were of this understanding, and that both parties proceeded by their conduct to agree that the nominated salary would continue to be $56,000 until the grant of his subclass 186 visa. The Nominee has provided instructions that he in no way believes that the Applicant intended to deprive him of additional income through non-adherence to the terms originally stated in this contract. The parties are in agreement that this was an instance of human error due, in part, to the simultaneously prepared nomination (457 and 186) applications and support documents, and a failure to update the terms of the contract used for the pending 457 application, to align with the parties’ intentions for the 186 Application. In essence, neither party ever intended that the nominee’s salary would increase until his permanent visa had been granted, and (by their conduct) neither party considers that the terms of agreement has been breached.

   10. The Applicant instructs that it is willing to make reparations to account for the four years in which, upon grant of the 457 visa on 2 October 2018, the applicant was to be paid at the annual base rate of pay of $58,000 per annum according to the terms of the agreement, and to provide remittance of such payments should it be required by the Tribunal. However, the parties submit that, given the foregoing, and that both parties agree to be bound by the lower amount of $56,000 as his gross salary, such reparation is not required.

   11. Additionally, with respect to the Nominee’s gross income as reported for the financial years 2019-2022, we provide the following table which approximates how the reported remuneration for those years would have equated to the nominated base rate of $56,000 (according to the terms of the former 457 agreement entered into by the parties) if not for the periods of unpaid leave and reduced hours as specified below. We are instructed that the Nominee agreed to unpaid leave during the respective periods outlined:

Financial Year	Periods of unpaid leave, unpaid lockdown periods and periods of reduced hours	Revised Gross (approx.) on $56,000 base salary (i.e. time not paid)	Reported gross (ATO Income Tax assessments)
2019	01/08/2018 to 27/09/2018 Overseas travel – Sri Lanka for Hajj pilgrimage (40 working days)	- 40 days unpaid (-$8,615)	$47,385.00
2020	10/11/2019 to 18/11/2019 Overseas travel – New Zealand (5 working days unpaid)	- 5 days unpaid (- $1077) - 20 days (reduced hours: - $1,088) - 30 days (reduced hours: - $2,547)	$51,705.00
07/04/2020 – 01/05/2020 Reduced hours – Coronavirus restrictions / partial lockdown period (20 working days) 12. The above table makes it evident that, had the Nominee received the payments for which he took unpaid leave / reduced hours, then his gross salary would have exceeded $56,000 in each of those years. In any event, the parties have entered a new employment agreement dated 9 February 2022 that is effective upon the grant of the 186 visa to now reflect the higher salary of $60,000 per annum and to align further with the market salary rate. 13. The Nominee also provides bank statements as evidence of his salary payments and to corroborate the periods of unpaid leave and reduced income during the Victorian lockdowns as outlined above (annexure 4). We note that the Nominee was ineligible for JobKeeper payments and other entitlements afforded to Australian citizens and permanent residents during the Covid-19 period, being a temporary visa holder, and accessed Department of Human Services Covid-relief and Red Cross extreme hardship support payments to supplement his loss or reduced income during applicable times. We note that the retail sector was particularly affected during the pandemic and that the nominated position is located within a retail shopping centre, the centre also being subject to restricted trade and other limitations during this time. 14. The Nominee, Mr Sarifdeen, wishes to express that he has been a temporary visa holder in Australia for a period in excess of 10 years. Mr Sarifdeen has the skills, knowledge and ability to perform the nominated occupation and the Applicant has an ongoing, genuine need for him to continue in the position to perform his role, particularly during a time of economic recovery and with the Nominee’s proven experience in the role and knowledge of the business’s operations. 15. We submit that the documentation now supplied provides support for the view that the Applicant has complied with its employment obligations throughout the course of the Nominee’s 5 years’ employment in the position, and supports the Applicant’s genuine need for the position of Retail Buyer and genuine need for the nominee. In the event that any further documentation or information is required, please contact our office.”

The application must be compliant: reg 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 need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

2. The applicant lodged the most recent application to nominate the nominee for the position of Retail Buyer – ANZSCO Code: 639211 with the business on 28 February 2018 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).

3. The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.

4. Further, the Tribunal is satisfied that the business has current assets of $251,772 against a total liabilities of $234,191 and has a shop lease in the Central West Shopping Centre Braybrook that commenced on 4 August 2016 and that continuous profitability ensures the viable ongoing performance of the business. In this regard, the Tribunal accepts that the registered business has employed the nominee as a Retail Buyer – ANZSCO Code: 639211 since 16 February 2017 and has demonstrated it is able to meet its employment obligations for the next two years, from the grant of a visa, as has been evidenced since the nominee was engaged on a 457 visa.

5. The Tribunal accepts that the business can meet its financial obligations and employ the nominee in the position of Retail Buyer – ANZSCO Code: 639211.

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

   Status of the nominator: reg 5.19(3)(b)

7. 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.

8. The Tribunal is satisfied that the applicant has been the sponsor of the nominee, whilst a 457 visa holder, from 2 October 2018 and has complied with the requisite obligations pertaining to sponsorship.

9. Further, the Tribunal is satisfied that Islam Kazi Muzharul Pty Ltd business was registered with ASIC on 1 July 2000 with an assigned ABN: 94 224 569 258 and that there is no evidence before the Tribunal 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).

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

   Previous employment of the nominee: reg 5.19(3)(c)

2. Broadly speaking, to meet the requirement in reg 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.

3. The evidence before the Tribunal is that the nominee was continuously employed by the applicant from 16 February 2017 based on the evidence of the nominee and the applicant lodged a 457 visa application on 19 October 2017, which was granted on 2 October 2018. The application for a 186 Direct Entry Stream visa of 28 February 2018 demonstrated that employment has continued subsequent to the delegate’s decision of 3 May 2019. The applicant provided evidence that a new contract of employment dated 9 February 2022 and signed on 18 February 2022 will apply from the date of the grant of a 186 visa and provides employment for a fixed term period of 2 years with the potential for an extension of employment.

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

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

5. 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.

6. The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 9 February 2022 and that the nominee has a contract of not less than 2 years, with an undertaking to employ the nominee for a minimum period of two years from the grant of the visa. In this regard, the evidence identified that the nominee will be paid a salary of $60,000 per annum, including 10 per cent superannuation for the position of Retail Buyer.

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

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

8. 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.

9. The Tribunal is satisfied that the terms and conditions of employment are 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.

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

    Training commitments and obligations: reg 5.19(3)(f)

11. 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.

12. The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet training Benchmark A or training Benchmark B since 12 August 2018.

13. Further, the Tribunal accepts that Islam Kazi Muzharul Pty Ltd (the applicant) had expended the following on training, during the relevant obligation period:

    a.Sydney Institute TAFE: 19 May 2016 - $850

    b.Sydney Institute TAFE: 7 June 2016 - $200

    c.Sydney Institute TAFE: 27 Feb 2018 - $3,250

    d.Sydney Institute TAFE: 20 June 2019 - $500

    e.Kangan: 2018-2019 - $1975.46

    f.Kangan: 2019-2020 - $2,396.18

14. The Tribunal accepts that the expenditure on training has exceeded the required benchmark for 2016 and 2018, however, no documentation was provided for the period 2017.

15. In accordance with 5.19(3)(f), the Tribunal may exercise discretion that these requirements may be disregarded if it is reasonable to do so. As such, the Tribunal is satisfied that the overall expenditure on training from 2016 to 2020 exceeds the benchmark rationalised for the total annual periods and thereby exercises discretion to disregard the compliance in 2017 as it is reasonable to do so given the overall compliance with the obligation over a 5 year period.

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

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

17. 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. 

18. The Tribunal is satisfied 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. 

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

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

20. 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.

21. The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 9 February 2022 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant stated that the nominee is paid a salary of $60,000 per annum, which includes 10 per cent superannuation.

22. Further, the Tribunal accepts the submission of the Representative for the variation in the nominee’s earnings relative to the respective contracted annual salary, based upon the identified periods of unpaid leave and the undertaking that the nominee will be compensated for an aberration in the original salary of $58,000 that was construed by the applicant as being $56,000 prior to the current contract of employment.

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

    Genuine need to employ nominee: reg 5.19(3)(i)

24. 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.

25. The Tribunal is satisfied that given the longevity of continuous employment for the period since 16 February 2017, the nominee is engaged in the genuine position of Retail Buyer – ANZSCO Code: 639211.

26. Accordingly, the requirement in reg 5.19(3)(i) is met.

27. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Warren Stooke AM
    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.