Metwest Steel Pty Ltd (Migration)

[2020] AATA 913

Metwest Steel Pty Ltd (Migration) [2020] AATA 913 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Metwest Steel Pty Ltd

CASE NUMBER:  1710224

DIBP REFERENCE(S):  BCC2015/3534404

MEMBER:Phoebe Dunn

DATE:20 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 March 2020 at 5:14pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – training benchmark commitments – incomplete evidence of expenditure on training in most recent year of sponsorship – total expenditure over three years – expenditure more than minimum requirement – employer barred from applying as standard business sponsor – actions of ‘rogue’ employee – steps to prevent future breaches of obligations – period of bar shortened on review – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140M(2), 359(2), 359A, 359C(1), 360(3), 363A, 362A

Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 2.86, 5.19(3)(f), (g)

CASES

Hasran v MIAC [2010] FCAFC 40; (2010) 183 FCR 413

Yang v MIAC [2010] FMCA 890

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 2 May 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 26 November 2015. 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. 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) of the Regulations because the delegate found the applicant had failed to provide sufficient evidence to demonstrate that it had met its training benchmark commitments and obligation under r.5.19(3)(f)(i) in each year of its most recent standard business sponsorship and further, it was not reasonable to disregard that failure in the circumstances under r.5.19(3)(f)(ii).

5. The applicant was represented in relation to the review by its registered migration agent, Mr Willem B Osstdyck JD.

6. The Tribunal received an application for review of the delegate’s decision on 12 May 2017. At that stage, the applicant was represented in relation to the review by its then registered migration agent, Mrs Haiying Chen.

7. On 25 November 2019, the Tribunal wrote to the applicant. The letter invited the applicant to provide information to the Tribunal pursuant to s.359(2) of the Migration Act 1958 (the Act). Specifically, the Tribunal invited information to be provided demonstrating that the business currently met all relevant criteria in r.5.19(3), including but not limited to the particular criteria that the Department had found were not met. The Tribunal provided a copy of r.5.19(3) for reference. The Tribunal requested that the information be provided by 9 December 2019, noting that an extension of time to respond could be requested but that this would need to be made by 9 December 2019. Finally, the Tribunal advised the applicant that if the requested information was not received by the due date (or by the extended due date, if an extension of time was requested and granted), then the entitlement to appear at the Tribunal hearing would be lost, and the Tribunal may proceed to make its decision on the available evidence without taking further steps to obtain the requested information.

8. The applicant responded with documents and information on 5 December 2019.

9. On 7 January 2020, the Tribunal wrote to the applicant under s.359A of the Act, inviting the applicant to comment on or respond to information that the Tribunal considered, subject to any comments or response, would be the reason, or part of the reason for affirming the decision under review.  The Tribunal explained the particulars of the information and the consequences of the Tribunal relying on them, as follows:

   a.The particulars of the information are that:

   i.On 8 February 2018, a delegate of the Minister for Home Affairs found Metwest Steel Pty Ltd had breached its sponsorship obligations under r.2.86 of the Regulations, and that it was not reasonable to disregard that breach;

   ii.As a consequence, action was taken by the Department under s.140M(2) to bar Metwest Steel Pty Ltd for 24 months from 8 February 2018 until 8 February 2020 from making future applications as a standard business sponsor; and

   iii.On 9 August 2019, the decision of the Department to impose a sponsorship bar on Metwest Steel Pty Ltd for 24 months from 8 February 2018 until 8 February 2020 was varied by the Tribunal by varying the period of the bar with the effect of shortening the sponsorship bar period, such that the sponsorship bar ended on 9 August 2019.

10. The Tribunal’s letter stated that this information was relevant to the review because, subject to any comments or response, it may mean that there is adverse information within the meaning of r.1.13A of the Regulations, and it is a requirement for the approval of the nomination under r.5.19(3)(g) that:

    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.

11. The Tribunal’s letter stated that the consequences of the Tribunal relying on this information is that the Tribunal may find that there is adverse information known to Immigration about Metwest Steel Pty Ltd, and therefore the nominator is unable to meet r.5.19(3)(g)(i).

12. The Tribunal stated that if the Tribunal were to rely on this information, it would be the reason, or a part of the reason, for the Tribunal affirming the decision of the delegate to refuse the nomination application that is under review.  The applicant was invited to comment on or respond to the information by 21 January 2020.

13. On 17 January 2020, the Tribunal received a recess for access to documents under s.362A of the Act, an authority to act from registered migration agent Mr Willem B Osstdyck JD, and a request for extension of time to respond to the adverse information.  An extension was granted to 11 February 2020.

14. On 28 January 2020, the applicant was invited to appear before the Tribunal on 18 February 2020 at 10.30am WST.  At the request of the applicant’s migration agent, this hearing was rescheduled to a combined hearing with Tribunal matters 1711458 and 1901596, as they turned on similar issues and involved the same applicant.

15. The applicant failed to respond to the adverse information letter by the extended date of 11 February 2020.  As the applicant failed to respond within the prescribed period, s.359C(1) of the Act applies, and pursuant to s.360(3) of the Act, the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: see Hasran v MIAC [2010] FCAFC 40; (2010) 183 FCR 413 at [26]; Yang v MIAC [2010] FMCA 890 at [40].

16. By letter dated 12 February 2020, the Tribunal wrote to the applicant noting that as the applicant failed to respond by the extended due date of 11 February 2020, and no further requests for an extension of time within which to respond were received, the applicant had lost its entitlement to appear before the Tribunal to give evidence and present arguments. The letter further noted that accordingly, the Tribunal would cancel the combined hearing of Tribunal files 1710224, 1711458 and 1901596 scheduled for 18 February 2020, and the hearing will proceed as a hearing of Tribunal file 1901596 only.

17. The letter further noted that the Tribunal would not be making a decision on the matter before 5 March 2020 at the earliest, and invited the applicant to provide any documents in support of the application including addressing the criteria applicable to this application in r.5.19(3) of the Regulations, and the information Metwest Steel Pty Ltd was invited to comment on or respond to by the extended date of 11 February, by 5 March 2020.

18. By emails sent on 14 February 2020 and 17 February 2020, the Tribunal received submissions and supporting documentation from the applicant.  The Tribunal received further documentation on 17 March 2020.

19. 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

20. 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.

21. In written submissions, the applicant has given detailed evidence about the nature of the business and the nominee’s role in the business. Metwest Steel Pty Ltd was established in 2007, and is a major supplier of structural steel and building products to the housing industry in Western Australia. The applicant currently employs 44 full-time employees and one part-time employee, 28 of whom are Australian citizens or permanent residents.  The applicant also engages contractors under tender arrangements to assist with on-site erection of the fabricated materials.  The applicant notes the importance to clients of being able to provide a ‘one stop shop’, including design, drawing fabrication and erection on site.

22. The nominee is a Welder (First Class) (ANZSCO 322313).  The nominee was granted a Subclass 457 visa on 30 April 2012.  The nominee is currently paid between $80,000 and $100,000 per annum, plus superannuation. The nominee has provided ATO Notices of Assessment for financial year (FY) 2014 to FY2016, and PAYG summaries for FY2018 and FY2019. The applicant’s submissions note that the nominee is a very valued employee.

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

23. 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.

24. The application for approval identifies Mr Yangfeng Wang, the nominee, who according to Departmental records, held a Subclass 457 visa from 30 April 2012. The occupation identified in the application is Welder (First Class) (ANZSCO 322313), and is accompanied by the prescribed fee and written certification.

25. The Tribunal is satisfied, based on the employment documents for the nominee, that the occupation identified is the same occupation carried out by the nominee as the holder of a Subclass 457 visa.  Accordingly, the Tribunal is satisfied that this occupation carries the same 4-digit code (3223) as the occupation carried out by the nominee whilst he held a Subclass 457 visa.

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

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

27. 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.

28. Departmental records confirm that the nominator is the standard business sponsor who last identified the nominee in a nomination made under s.140GB of the Act.  The standard business sponsorship was approved on 1 October 2014, for a period of three years, to 1 October 2017.

29. The Tribunal has received current information evidencing that the applicant is actively and lawfully operating a business in Australia, including an ASIC current and historical search, financial statements from FY 2015 to FY2018, company tax returns for FY2016 to FY2018, and the current WorkCover Certificate of Currency.  The Tribunal has also received a copy of the applicant’s Business Plan for 2020.

30. 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) of the Regulations.

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

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

32. 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 two of the three years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that 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.

33. In this case, r.5.19(3)(c)(i) applies. The nominee was granted a Subclass 457 visa to work in the position of Welder (First Class) on 30 April 2012, and has been employed by the applicant full-time in that position since that date. The nomination application was lodged on 26 November 2015.

34. The Tribunal has had regard to documentary evidence regarding the nominee’s employment and position, and is satisfied that the position carried out by the nominee is that of Welder (First Class).

35. The Tribunal is further satisfied that the nominee has worked for the applicant on a full-time basis in Australia in the relevant position for at least two of the three years before the application was made.  In so finding, the Tribunal has considered documentary evidence provided to the Tribunal, including the nominee’s Notices of Assessment for FY2014 to FY 2016, the nominee’s PAYG summaries for FY2016 to FY2018, and current and former contracts of employment and position descriptions.

36. 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)

37. 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.

38. The most recent contract of employment, dated 10 November 2015, outlines the current terms and conditions of employment, and provides for a minimum of two years’ employment from the date of approval of the visa, with no express exclusion of the possibility of extending the period of employment.  The most recent contract also provides for an annual salary of $88,410 per annum, plus superannuation at the current legislated rate, and provision for overtime.  The Tribunal has had regard to the most recent PAYG summaries for the nominee, which show that in FY2018, the nominee was paid $96,461, and in FY2019 was paid $82,183, consistent with the contracted salary.

39. In written submissions to the Tribunal, the applicant has noted the importance of the nominee to the business.  The applicant has confirmed that the position is still available ot the nominee.

40. The Tribunal has also had regard to the applicant’s financial capacity to employ the nominee for a period of at least two years.  The Tribunal has considered updated financial records, including the 2017 and 2018 financial statements, and most recent business activity statements, updated payroll information, together with oral evidence at the hearing and is satisfied that the applicant can support the employment of the nominee for at least two years on terms that do not expressly preclude the possibility of an extension.

41. 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)

42. 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.

43. In written submissions, the applicant has stated that there is currently no Australian citizen or permanent resident employed by the business performing similar work to the nominee.  A search of Payscale.com indicates that the average annual salary for a Welder (First Class) in Australia is $26.04 per hour, and as such, the nominee’s current salary is higher than the expected range. Further, the terms and conditions of the nominee’s employment are in accordance with Fair Work Act 2009 minimum requirements.

44. The Tribunal also notes that the applicant has drafted an Enterprise Agreement 2020 for the business, and is in the process of consulting with employees before submitting it to Fair Work Australia for approval.  The applicant has stated that it is committed to ensuring the process is run fairly and that employees have a comprehensive understanding of their rights and responsibilities under the agreement before it is approved.

45. Given the above, the Tribunal is 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 same workplace at the same location. 

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

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

47. 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.

48. The application was refused by the delegate on the basis that the applicant had failed to demonstrate compliance with its training benchmark commitments and obligations during its most recent standard business sponsorship (SBS), under Training Benchmark B.  The delegate was not satisfied that the applicant had spent the minimum amount required to satisfy Training Benchmark B or that the training had been provided to Australian citizens and permanent residents who are employees of the applicant.

49. The applicant was most recently approved as a standard business sponsor on 1 October 2014 for a period of three years to 1 October 2017.  In written submissions, the applicant has attested that it has complied with its training commitments and obligations through the provision of training to Australian citizens and permanent residents by a training provider under Training Benchmark B, as follows:

    a.Year 1 (1 October 2014 – 30 September 2015) – Expenditure on training totalling $37,359;

    b.Year 2 (1 October 2015 – 30 September 2016) – Expenditure on training totalling $40,787; and

    c.Year 3 (1 October 2016 – 30 September 2017) – Evidence of expenditure on training in FY2017 totalling $37,385.31.

50. The applicant has stated in submissions that this training was conducted by a number of different registered training providers to employees of the business who are Australian citizens and permanent residents.  The applicant has also provided evidence of the employees who received the training, and their citizenship status. 

1. The financial reports and payroll documents before the Tribunal indicate that the nominator’s payroll for the first year of the SBS was $3,588,463.27, equating to a requirement to contribute at least $35,884.63 under Training Benchmark B on training Australian citizens and permanent residents for each year they were approved and employed a Subclass 457 visa holder. In the second year of the SBS, the payroll was $3,707,717.69, equating to a requirement to spend at least $37,077.18, on training Australian citizens and permanent residents for each year they were approved and employed a Subclass 457 visa holder.  In the third year of the SBS, the applicant’s payroll was $3,721,995.50, equating to a requirement to spend at least $37,219.95, on training Australian citizens and permanent residents for each year they were approved and employed a Subclass 457 visa holder.

2. The Tribunal notes that the evidence provided by the applicant seeking to establish compliance with its commitments and obligations in the third year of the most recent SBS relates to the 2017 financial year, and as such includes evidence of expenditure from 1 June 2016 to 30 September 2016, which falls within year 2 of the most recent SBS and does not include evidence of expenditure from 1 July 2017 to 30 September 2017, which falls within the final year of the most recent SBS.  The effect of this is that there is insufficient evidence to assess whether or not the applicant met its training benchmark commitments and obligations in the third year of the most recent SBS.  Based on the evidence before the Tribunal, the applicant spent a total of $24,685.50 from 1 October 2016 to 30 June 2017, with no evidence of expenditure from 1 July to 30 September 2017.  Accordingly, the Tribunal finds that the applicant has not met its training commitments and obligations in the third year of its most recent SBS.

3. The Tribunal has considered whether it is reasonable to disregard the failure to meet the applicant’s training benchmark commitments and obligations in the third year of the most recent SBS under r.5.19(3)(f)(ii). In considering whether to exercise its discretion, the Tribunal has taken into consideration the following matters:

   a.The applicant has provided evidence of continued expenditure on training in FY2018 and FY2019, after the end of the most recent SBS, demonstrating an ongoing commitment to training;

   b.The FY2018 financial report indicates that the applicant spent a total of $29,568 on training in FY2018. Based on this figure, it can be extrapolated that the applicant spent $7,392 in the first quarter of FY2018, which, if added to the total spent from 1 October 2016 to 30 June 2017, would mean that the applicant spent approximately $32,077.76 in the third year of the SBS; and

   c.The total amount spent in the three years of the most recent SBS, based on the Tribunal’s calculations and the assumptions made in this paragraph, is approximately $110,223.76. This amounts to $42 more than the minimum total required expenditure over the three years of the most recent SBS. 

4. The Tribunal is persuaded the applicant has met the objectives of the training commitments and obligations by paying in excess of the minimum required to satisfy its training benchmark obligations under Training Benchmark B based on the Tribunal’s calculations of the minimum expenditure required in total over the three years of the most recent SBS.

5. The Tribunal has considered IMMI 13/030 and relevant policy[1], and is persuaded that the applicant had a genuine intention to meet its training commitments and obligations, and has spent an aggregate on training in excess of the total training commitments and obligations for that period under Training Benchmark B. Accordingly, the Tribunal finds that it is reasonable to exercise its discretion under r.5.19(3)(f)(ii) to disregard r.5.19(3)(f)(i).

   [1] PAM, Div/Reg 5.19 – approval of nominated positions (employer nomination)

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

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

7. 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. 

8. On 8 February 2018, a delegate of the Minister for Home Affairs found the applicant had breached its sponsorship obligations under r.2.86 of the Regulations and it was not reasonable to disregard that breach.  As a consequence, action was taken by the Department under s.140M(2) to impose a sponsorship bar on the applicant for 24 months from 8 February 2018 to 8 February 2020. On 9 August 2019, the decision of the Department to impose a 24-month sponsorship bar was varied by this Tribunal, to shorten the period to 18 months, such that it ended on 9 August 2019. 

9. As noted in paragraphs 9 to 12 of this submission, the Tribunal wrote to the applicant in accordance with s.359A of the Act, on the basis that it considered the sponsorship bar to be adverse information known to Immigration within the meaning of r.5.19(g) and r.1.13A of the Regulations. The Tribunal invited the applicant to comment on or respond to information on the basis that the Tribunal considered, subject to any comments or response it received from the applicant, the sponsorship bar would be the reason, or part of the reason for affirming the decision under review.

10. In submissions to the Tribunal, the applicant has stated that it does not dispute the information is adverse within the meaning of r.5.19(g) and r.1.13A and accepts the consequences of it. The applicant has made extensive submissions regarding the exercise of the Tribunal’s discretion to disregard the adverse information, on the basis that it is reasonable to do so in the circumstances. The applicant’s submissions can be summarised as follows:

    a.The adverse information resulted from an employee taking a period of unpaid leave and during that period, without the knowledge or consent of the applicant, undertaking paid employment with another business in breach of his Subclass 457 visa conditions.  The applicant has described this as the actions of a “rogue” employee;

    b.The employer approved the unpaid leave over concerns about the employee’s health, including his mental health, at the time;

    c.The events occurred in 2017 and have not been repeated;

    d.The applicant has taken steps to ensure that it does not breach its obligations in the future, including engaging a Perth-based legal firm Robertson Hayles Lawyers and an immigration specialist to advise on and assist with managing  its sponsorship obligations and drafting and implementing an Enterprise Agreement in accordance with the requirements of the Fair Work Act;

    e.The applicant has taken steps to ensure employees are aware of their rights and responsibilities including:

    i.Issuing an Employment Handbook;

    ii.Developing an Enterprise Agreement to apply to all employees in accordance with Fair Work Act requirements;

    iii.Engaging an expert migration lawyer to audit the business and ensure ongoing compliance with its sponsorship obligations, as well as advise on emerging issues affecting employees, such as COVID-19;

    f.The sponsorship bar has had a significant impact on its business and its capacity to continue to employ skilled overseas workers in critical functions, some of whom cannot be easily sourced in Western Australia. This was recognised by the Tribunal in its decision when it reduced the 24-month bar by 6 months;

    g.The affected nominees are critical to the business’ operations and the applicant has provided evidence of the importance of retaining the nominees for both the health of the business and its suppliers and stakeholders; and

    h.If the nomination decision is affirmed on review, it will have a devastating impact on these employees and their families, through no fault of their own. 

11. The Tribunal has considered whether to exercise its discretion to disregard the adverse information, and is persuaded that it is reasonable to do so in the circumstances of this case.  In so finding, the Tribunal has taken into consideration the submissions made by the applicant set out above and notes that the incident that led to the sponsorship bar was a one off event that has not been repeated, and that the sponsorship bar was subsequently reduced from 24 months to 18 months.  The Tribunal also notes the circumstances that led to the sponsorship bar and considers that the applicant has accepted responsibility, and notes the steps taken to prevent recurrence.

12. For these reasons the Tribunal finds that it is reasonable to disregard the adverse information under r.5.19(3)(g)(ii).

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

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

14. 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.

15. There is no evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business. 

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

17. 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

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

    Phoebe Dunn
    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

    (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.