Li's Massage Therapy Pty Ltd (Migration)

[2020] AATA 6079

Li's Massage Therapy Pty Ltd (Migration) [2020] AATA 6079 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Li’s Massage Therapy Pty Ltd

CASE NUMBER:  1812518

HOME AFFAIRS REFERENCE(S):          BCC2017/1600133

MEMBER:Susan Trotter

DATE:17 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 December 2020 at 10:20am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – Massage Therapist – training benchmark commitments and obligations – genuine need for the nominator to employ a paid employee – actively and lawfully operating a business in Australia – nominee was employed in the nominated position in a full time capacity – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13, 2.87, 5.19, Schedule 2, cl 457.223

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 13 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 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).

3. On 4 May 2017, the applicant applied for approval in the Temporary Residence Transition stream, nominating the occupation of Massage Therapist (ANZSCO[1] code 411611) to be undertaken by Mrs Lin Li (the nominee) for its business. The nominee, a citizen of China, at the time held a Subclass 457 (Temporary Work (Skilled)) visa. The Temporary Residence Transition stream, prior to 18 March 2018, enabled Subclass 457 visa holders who had worked for their employer for two years to apply for a permanent visa where the employer had offered them a permanent position in the same occupation.

   [1] Australian and New Zealand Standard Classification of Occupations

4. Also, on 4 May 2017, the nominee lodged a related Subclass 186 Employer Nomination (Permanent) (Class EN) visa application, as primary visa applicant, with the Department.

5. On 13 April 2018, the delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because the delegate was not satisfied that the applicant had demonstrated that it met the required training requirements and, further, the delegate was not satisfied that it was reasonable to disregard the requirements.

6. On 1 May 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

7. On 30 October 2020 and 7 December 2020, Mr Zhihong Li, director of the applicant, appeared in person before the Tribunal to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Mandarin and English languages.

8. The applicant was represented in relation to the review.

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 r.5.19(3), as in effect at the time of the nomination application. All references to the requirements of the Regulations in these Reasons are as they were in effect at the time of the nomination application assessed now at the time of decision. For the nomination to be approved, all the requirements must be met.

11. The evidence before the Tribunal, including Mr Li’s oral evidence, shows that the applicant owns and operates a number of massage businesses within shopping centres in southern Queensland and northern New South Wales, including at Tweed Heads.

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

12. 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) of the Migration Act 1958 (the Act). The application must also identify a relevant person and occupation.

13. Regulation 5.19(3)(a)(i) together with r.5.19(2), requires that the application for approval was in the approved form, includes a written s.245AR certification and was accompanied by the prescribed fee, where relevant.

14. Having regard to documentation in the file of the Department, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee of $540. Further the applicant has provided a written s.245AR certification in the body of the application form. The requirements of r.5.19(3)(a)(i) are therefore met.

15. Regulation 5.19(3)(a)(ii) requires that the application for approval must identify a person who holds a Subclass 457 visa on the basis that they met cl.457.223(4) of Schedule 2 to the Regulations (which is a primary criterion for applicants in the standard business sponsor stream). The application identified Mrs Lin Li as the relevant person or ‘nominee’. According to Department records, the nominee was granted a Subclass 457 visa on 19 January 2015, which was valid until 19 January 2019. Regulation 5.19(3)(a)(ii) is therefore met because the nominee held a Subclass 457 visa at the time she was identified as the relevant person for the nomination application made on 4 May 2017.

16. Regulation 5.19(3)(a)(iii) requires that the application for approval identify an occupation, in relation to the position, that is both listed in ANZSCO and which has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 visa identified in the application.

17. The applicant nominated the position of Massage Therapist in the application for approval of the nomination and referred to the ANZSCO occupation of Massage Therapist. The Tribunal finds ANZSCO lists the occupation of Massage Therapist ANZSCO code 411611. The Tribunal has had regard to Departmental records pertaining to the nominee’s Subclass 457 nominated occupation and documentary evidence provided by the applicant. Based on these documents, the Tribunal is satisfied that the identified occupation is listed in ANZSCO and has the same 4-digit occupation unit group code as the occupation carried out by the nominee in relation to the Subclass 457 visa. Regulation 5.19(3)(a)(iii) is therefore met.

18. Given the above findings that subparagraphs (i), (ii) and (iii) are met, the requirements in r.5.19(3)(a) overall are therefore met.

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

19. 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.

20. The Department’s records confirm the applicant was approved as a standard business sponsor from 12 February 2014 to 2 June 2015 and from 19 October 2015 to 19 October 2020 and was the standard business sponsor who last identified the nominee in a nomination under s.140GB of the Act. Regulation 5.19(3)(b)(i) is therefore met.

21. The Tribunal has had regard to the business registration and ABN records on the ASIC public databases and financial documents of the applicant including the financial statements and tax returns provided by the applicant and is satisfied that the applicant is registered as a business.

22. The Tribunal is satisfied based on these records and documents that the applicant is actively and lawfully operating a business in Australia. Regulation 5.19(3)(b)(ii) is therefore met.

23. The Department’s records also confirm 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). Regulation 5.19(3)(b)(iii) is therefore met.

24. Given the above findings that subparagraphs (i), (ii) and (iii) are met, the requirements in r.5.19(3)(b) overall are therefore met.

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

25. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    (a)  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 two of the three years preceding the nomination application; or

    (b)  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 two years in the three years immediately before the application.

26. The material before the Tribunal, including weekly payslips and corresponding bank statements, taxation returns, financial statements and superannuation statements indicate that the nominee commenced employment with the applicant in 2015, and has worked full time for the applicant as the holder of a Subclass 457 visa since 19 January 2015 and continues to be employed by the applicant. As previously noted, the nominee was the holder of a Subclass 457 visa from 19 January 2015 to 19 January 2019.

27. The evidence therefore demonstrates that the nominee was employed full time for at least a two-year period within the three years preceding the nomination application on 4 May 2017.

28. The Tribunal is accordingly satisfied that the nominee has been employed full time in Australia in the position for which she held a Subclass 457 visa for at least two of the three years immediately before the nomination application on 4 May 2017.

29. Given the above findings, the requirement in r.5.19(3)(c)(i) and therefore r.5.19(3)(c) overall is met.

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

30. 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 two years on terms that do not expressly preclude the possibility of an extension.

31. The nominee is a person to whom r.5.19(3)(c)(i) applies and is therefore required to meet this requirement.

32. Notably, as corroborated by PAYG statements and Notices of Assessment of the nominee and other financial documentation, the nominee has now been employed by the applicant for over six years continuously, initially part time and full time since grant of the Subclass 457 visa. The Tribunal has had regard to the terms and conditions of the nominee’s employment, as set out in the employment contracts dated 5 November 2019, and notes that it provides for the nominee to be employed for two years from the date on which she is granted the Subclass 186 visa, associated with the nomination application. The Tribunal is satisfied that the 5 November 2017 contract provides that the nominee’s employment be for a minimum of two years and that the contract does not expressly preclude the possibility of an extension to that employment term.

33. The Tribunal also considered whether the applicant has the financial capacity to pay the full-time salary for the nominated position for at least two years.

34. The documents before the Tribunal show that the applicant was registered in 2009 and has continued trading since that time.

35. Various financial statements were in evidence before the Tribunal. At the second hearing on 7 December 2020, the Tribunal discussed differing figures in financial statements for the same periods provided to the Tribunal at different times. Following the second hearing, the applicant provided amended financial statements and taxation returns of the applicant clarifying the previous inconsistencies. The Tribunal observes that the financial statements are not audited however on balance accepts that the amended financial statements (and corresponding amended taxation returns) reflect the financial position of the applicant for the stated periods, including relevantly as follows:

Year ended 30/06/15	Year ended 30/06/16	Year ended 30/06/17	Year ended 30/06/18	Year ended 30/06/19
Total income	$1,454,738	$1,909,384	$2,466,601	$2,789,806	$2,484,145
Net profit or (loss)	$35,568	$67,753.01	$84,695.83	$26,956	($103,152.21)

1. Business Activity Statements for the 2019/2020 financial year in evidence show:

July 2019 to September 2019	October 2019 to December 2019	January 2020 to March 2020	April 2020 to June 2020	July 2020 to September 2020
Sales	$544,060	$554,380	$469,110	$233,890	$567,435
Total salary, wages and other payments	$37,522	$38,446	$25,278	$22,730	$19,302

1. Mr Li’s evidence to the Tribunal was that the applicant owns and operates several massage shops in shopping centres across south east Queensland and northern New South Wales, in total 10 shops. He said that two of the shops are not currently operating due to a shortage of staff. All shops closed during the COVID-19 pandemic lockdown. The shops have all re-opened except for two at Noosa. The Shopping Centre management has asked them to re-open but they need more staff. One of their longstanding staff members is currently overseas and is also awaiting an application to the Tribunal in relation to his visa. He first started the business in 2009. There was a loss in 2019 because he lost some of his best masseurs following the abolition of the Subclass 457 visa in March 2018 and because of the subsequent difficulty of hiring staff in regional areas. The business had slowly started to improve again before the COVID-19 pandemic, and he is expecting to make a profit for the 2019/2020 year however the accounts have not yet been finalised. The shopping centres reduced rent and some of his employees were also entitled to Jobkeeper payments. Despite the Subclass 457 abolition and the COVID-19 pandemic he remains confident the business will be able to remain trading profitably into the future.

2. The Tribunal also notes a letter from the applicant’s accountants dated 29 October 2020 as follows (unedited):

   We are the accountant and Tax agent for Li’s massage Therapy Pty Ltd. The business has been in the market for over 11 years. The business is an overall profitable business. As a professional accountant, based on the current operation, the business is running healthy and has financial capacity to sponsor overseas workers and fulfill its financial obligations such as two-year full-time salary payments to the employer LIN LI specified in the sponsored under permanent employer visa program.

3. The Tribunal has had regard to all of the financial and other evidence and is satisfied that the business is a long-established business which has usually been profitable each year. It is understandable that there would have been a downturn in the business following the abolition of the Subclass 457 visa scheme given the nature of the business. It is also understandable that there would have been a downturn in the profitability of the applicant due to COVID-19, particularly during the April to June 2020 quarter given the lockdown that occurred during that quarter. Notably, however, the Business Activity Statements demonstrate an increased profitability recently and the Tribunal is satisfied having regard to all matters that the applicant has the capacity to provide employment to the nominee for at least two years on a full-time basis, as it has been doing for several years to date.

4. Having regard to all of these matters, the Tribunal is satisfied that the nominee will be employed on a full-time basis in the position for at least two years.

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

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

6. 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.

7. The nomination application states that there are 12 Australian citizen or permanent resident employees and 20 non-Australian citizen or non-permanent resident employees. The nominee is nominated to work at the applicant’s massage shop at Li’s Massage, Tweed Heads. Mr Li’s evidence was that there is no Australian citizen or permanent resident carrying out the same work as the nominee at that location.

8. The Tribunal is satisfied on the evidence that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as where the nominee is working and proposing to continue to work for the applicant.

9. Relevant sources show that the average salary range for a massage therapist in Australia is in the range $39,000 to $63,000 per annum with a median salary of $54,000 per annum.[2]

   [2] (Payscale)

10. The nominee’s rate of pay, specified in the employment contract dated 18 April 2015 and an updated employment agreement dated 5 November 2019 was and is $55,000 per annum plus superannuation. The recent financial and taxation documentation provided to the Tribunal shows that the nominee’s salary remains in accordance with this contract.

11. The nominee’s salary is within the indicative range and just over the current average salary for a full-time massage therapist according to Payscale. The Tribunal is satisfied and finds that the terms and conditions of employment applicable to the position are no less favourable than the terms and conditions that would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location.

12. The Tribunal is therefore satisfied that the terms and conditions applicable to the position are no less favourable than those that would be provided to an Australian citizen performing equivalent work in the same workplace at the same location.

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

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

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

15. Regulation 2.87B as in force prior to 12 August 2018 required that a person who is a standard business sponsor of at least one primary sponsored person must comply with requirements relating to training of Australian workers, in each year the person engages a Subclass 457 visa holder.

16. Pursuant to r.2.87B, the training requirements applicable for an established business with approval as a standard business sponsor in that period are set out in written instrument IMMI 13/030 as follows:

    ·A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or

    ·B) 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, excluding training that is only undertaken by persons who are not Australian citizens or permanent residents.

1. Regulation 2.87B was repealed from 12 August 2018 and the obligation to meet annual training benchmark requirements has been replaced by the new requirement to pay a nomination training contribution charge as part of the nomination process. A transitional provision provides that a standard business sponsor is not required to comply with the repealed training benchmark obligations in relation to a period of 12 months ending on or after 12 August 2018.

2. As already noted, the Department’s records show that the nominator’s most recent approval as a standard business sponsor was from 19 October 2015 to 18 October 2020. It follows that the applicant must have complied with applicable obligations relating to training requirements in the following 12-month periods of its most recent sponsorship approval:

   19 October 2015 to 18 October 2016
   19 October 2016 to 18 October 2017

3. Mr Li’s evidence to the Tribunal was that he was aware of the company’s training obligations and sought advice from the company’s accountant about those obligations and complied with them.

4. The applicant seeks to meet Training Benchmark B.

5. In submissions dated 7 November 2020, it was submitted that the total training expenses of the applicant for the first two years of the sponsorship period were as follows (with reference to the financial statements for the financial year most closely aligning to the periods where relevant):

   1^st year

   (a)Payroll – $911,371 (for year ended 30 June 2016)

   Training – $9,680 (in the period 19 October 2015 to 18 October 2016) as follows:

   (i)$2,000 expended on 12 May 2016 for Yunlong Xiang, Australian permanent resident for training in customer service and communication skills training at International Institute of Management & Technology.

   (ii)$7,680 expended on 8 August 2016 for Jing Han, Australian permanent resident for Diploma of Remedial Massage at the Australian College of Eastern Medicine.

   2^nd year

   (b)Payroll – $1,196,690 (for year ended 30 June 2017)

   Training – $13,436.37 including $13,300 as follows:

   (i)$13,300 expended on 6 October 2017 for four Australian citizen/permanent resident staff (Futao Jiang, Yuqin Zhou, Tengkang Li and Yunlong Xiang) for Dry Needling courses at the Australian College of Eastern Medicine.

6. The applicant has also made submissions in relation to the third and fourth year of the sponsorship period. However, as each of the third and fourth years ended after 12 August 2018 the obligation is not required to be met in those years.

7. It was submitted that the documentation and specific detail of the training expenses meeting Training Benchmark B in the first year of the most recent sponsorship approval period comprised:

Trainee	Australian citizen or Permanent Resident	Training	Supporting Documentation	Amount
Yunlong XIANG	Australian Permanent Resident as evidenced by Subclass 187 visa grant letter of 22 August 2014 PAYG payment summary for Yunlong XIANG for period 1 July 2016 to 30 June 2017 for Li’s Massage Therapy Pty Ltd	IMT – Customer service and communication skills training	12 May 2016 letter and training plan from IIMT (International Institute of Management & Technology) for Yunlong XIANG – Manage Customer Service 12 May 2016 Receipt from IMT for Employee professional development for Trainee 1 – Yunlong XIANG	$2,000
Jing HAN	Australian Permanent Resident as evidenced by Visa Entitlement Verification Online check dated 8 November 2020 PAYG payment summary for Jing HAN for period 1 July 2015 to 30 June 2016 for Li’s Massage Therapy Pty Ltd PAYG payment summary for Jing HAN for period 1 July 2016 to 30 June 2017 for Li’s Massage Therapy Pty Ltd	The Australian College of Eastern Medicine	8 August 2016 Receipt of The Australian College of Eastern Medicine Certificate of completion of Diploma of Remedial Massage by Jing HAN	$7,680
$9,680

and in the second year of the most recent sponsorship approval period comprised:

Trainee	Australian citizen or Permanent Resident	Training	Supporting Documentation	Amount
The Australian College of Eastern Medicine – Dry Needling Course	6 October 2017 Tax Invoice and Receipt from The Australian College of Eastern Medicine for Training fees Dry Needling x 4 for $13,300	$13,300
Futao JIANG	Australian Permanent Resident – Chinese Passport and associated VEVO search showing permanent visa granted 9 December 2015 PAYG payment summary for Futao JIANG for period 1 July 2016 to 30 June 2017 for Li’s Massage Therapy Pty Ltd	The Australian College of Eastern Medicine – Dry Needling Course	Certificate of completion of Level 1 & Level 2 Dry Needling Certificate Courses by Futao JIANG (25 October 2017)
Yuqin ZHOU	Australian Permanent Resident – Chinese Passport and associated VEVO search showing permanent visa granted 9 December 2015 PAYG payment summary for Yuqin ZHOU for period 1 July 2016 to 30 June 2017 for Li’s Massage Therapy Pty Ltd	The Australian College of Eastern Medicine – Dry Needling Course	Certificate of completion of Level 1 & Level 2 Dry Needling Certificate Courses by Yuqin ZHOU
Tengkang LI	Australian passport issued 2 December 2014 PAYG payment summary for Tengkang Li for period 1 July 2016 to 30 June 2017 for Li’s Massage Therapy Pty Ltd	The Australian College of Eastern Medicine – Dry Needling Course	Certificate of completion of Level 1 & Level 2 Dry Needling Certificate Courses by Tengkang LI
Yunlong XIANG	Australian Permanent Resident as evidenced by Subclass 187 visa grant letter of 22 August 2014 PAYG payment summary for Yunlong XIANG for period 1 July 2016 to 30 June 2017 for Li’s Massage Therapy Pty Ltd	The Australian College of Eastern Medicine – Dry Needling Course	Certificate of completion of Level 1 & Level 2 Dry Needling Certificate Courses by Yunlong XIANG

1. The financial statements and taxation documents of the applicant provided to the Department and the Tribunal show the following subcontractor, wage, superannuation and training figures for the applicant for the financial years ended 30 June 2015, 30 June 2016 and 30 June 2017:

Year ended 30/06/15	Year ended 30/06/16	Year ended 30/06/17
Wages	$371,849.00	$611,115.00	$829,524
Subcontractors	$336,764.00	$274,512.00	$329,812
Superannuation	$24,987.23	$25,743.26	$37,354
Total payroll	$733,600.23	$911,370.26	$1,196,690
Training	$6,000.00	$8,963.64	$13,436.37

1. The financial records, being for financial years ended 30 June, understandably do not exactly match the relevant years of the sponsorship period, 19 October 2015 to 18 October 2016 and 19 October 2016 to 18 October 2017. The two relevant years of the sponsorship period straddle three financial years. In the circumstances, the Tribunal considers it reasonable to have regard to the financial records available for the proximate financial years, without requiring an exact accounting matching the years of the sponsorship period. Having regard to the expenditure receipts and the figures for each of the three financial years, the Tribunal is satisfied that the applicant has expended at least 1% of payroll on training meeting the requirements of Training Benchmark B in each of the first two years of the applicant’s most recent sponsorship approval period.

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

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

3. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

4. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any person associated with the nominator.

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

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

6. 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.

7. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with the relevant workplace relations laws.

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

   Conclusion

9. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19(3), and therefore r.5.19, for approval of the nomination of the position in Australia.

   DECISION

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

    Susan Trotter
    Member

    
    

    ATTACHMENT – Extracts from the Migration Regulations 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

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

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

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

    Temporary Residence Transition nomination

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

    (a)the application for approval:

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

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

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

    (A)is listed in ANZSCO; and

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

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.