RSG (ABC) PTY LTD (Migration)

[2020] AATA 2595

RSG (ABC) PTY LTD (Migration) [2020] AATA 2595 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  RSG (ABC) PTY LTD

CASE NUMBER:  1827023

HOME AFFAIRS REFERENCE(S):          BCC2017/4936977

MEMBER:Susan Reece Jones

DATE:19 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 19 June 2020 at 9:59am

CATCHWORDS

MIGRATION – application for approval of nominated position – temporary residence transition stream – genuine need for position – position description and duties compared to ANZSCO listing – nominee’s skills and experience – nominator’s plans to re-establish operations after COVID-19 restrictions – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 359

Migration Regulations 1994 (Cth), r 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 27 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 23 December 2017. The requirements for the approval of the nomination of a position as a (Restaurant Manager) Cook (ANZSCO: 351411) 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)(i) of the Regulations because the applicant did not demonstrate that there was a genuine need for the applicant to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

5. The Tribunal received a review application on 15 September 2018. It was signed on behalf of the applicant by a director, Mr Stewart Koziora, and was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration, Mr Christopher Agnew of Agnew Law as its representative and authorised recipient for correspondence.

6. On 2 March 2020, the Tribunal wrote to Mr Koziora pursuant to s.359(2) of the Migration Act (the Act), to invite him to provide updated and current information demonstrating that the applicant met all of the criteria in r.5.19(3). The Tribunal provided examples of the kinds of information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination.

7. On 16 March, 14 and 29 May 2020, the applicant’s representative provided substantial additional material including:

   ·ASIC Current and Historical extract dated 7 February 2020

   ·ASIC Business names

   ·Financial Statements for 2016, 2017, 2018, 2019

   ·Business Activity Statements (BAS): 2016 - 2020

   ·ATO Tax Return prepared by Mourfields Accountants: 2016, 2017, 2018, 2019

   ·RSG licence Liquor Licence 32288769: from Gary Price Solicitors 

   ·Lease: Dexus Property Group: QV Centre Melbourne

   ·Lease: Melbourne Central Chao Gao Pty Ltd known as Asian Beer Café

   ·City of Melbourne: Certificate of Food Registration to 30 September 2020

   ·Father’s Office function brochures, menus etc

   ·Payroll Activity summaries for nominee 2015 -2020

   ·Position Description

   ·Updated Organisation chart

   ·Itemised employee list and immigration status

   ·Hospitality Industry (General) Award 2010

   ·Enterprise Agreement: Karma.com. Pty Ltd

   ·Employment Contract

   ·Nominee Bank Statements

   ·Superannuation Statements

   ·Consolidated Training Expenditure: 2015 - 2019  

   ·Consolidated External Training Provider Invoices and Payments: 2015 – 2019

   ·Consolidated External Training Provider RTO details: William Angliss College

   ·Savvy Academy Training materials, coaching sheets, training participant workbooks, restaurant Training Plans, leadership modules, time management

   ·Menus, daily/weekly workplans

8. In summary, the applicant’s sole director Mr Koziora, and the representative made the following submissions (written and at hearing):

   (a)Mr Koziora, is a hospitality ‘entrepreneur’ who has operated restaurants and bars for over 20 years. Together with his wife, Mr Koziora operates a group of related entities, all of which are owned by Mr Koziora directly or indirectly through another entity (collectively referred to as the RSG Group or RSG) including (but not limited to):

   a.RSG (ABC) PTY LTD

   b.RSG(ADM) PTY LTD

   c.RSG (FO) PTY LTD

   d.RSG (FITZ) PTY LTD

   e.RSG (BK) PTY LTD

   f.RSH (CK) PTY LTD

   g.RETAIL SAVVY PTY LTD

   (b)All of the RSG Group’s activities are engaged in the restaurant / bar / venue business in the Melbourne CBD, in Victoria. RSG owns in excess of 25 Business Names, some of which are currently operative, including Father’s Office and Asian Beer Café. 

   (c)The Group currently operates 2 key restaurants / bar, namely ‘Father’s Office’ and ‘Asian Beer Café’. Both are large enterprises with long trading hours. Each enterprise has long term lease arrangements, and each holds a liquor licence and the necessary operational registrations with the City of Melbourne.

   (d)Until late 2019, when Mr Koziora sold 3 restaurants, RSG operated 5 restaurants and employed approx. 95 staff. As at March 2020 (pre COVID-19 restrictions), RSG operated the 2 restaurants noted above and employed 48 employees including 9 Australian citizens and Permanent Residents. The Tribunal notes that at time of hearing, the applicant was not operational because of COVID-19, however at the time of decision, the applicant is now operating albeit under COVID-19 restrictions. Mr Koziora noted to the Tribunal that having owned and operated many restaurants for many years, and being committed to the sector, it is his intention post COVID-19, to re-establish, rebuild and invest in his hospitality / restaurant business. 

   (e)All employees are engaged by RSG under the Group’s own Enterprise Agreement, (known as the Karma.com Enterprise Agreement), the terms of which are sanctioned by the Fair Work Commission.

   (f)As RSG is a large employer, in 2016, RSG established Savvy Academy Training as the Group was continuously losing employees to the Crown Group and in order to reduce staff turnover which is notoriously high in this business sector. RSG took the approach that through its Savvy Academy that it could invest in training its employees in order to provide a hospitality career path and in order to retain and professionalise the performance of all of the RSG employees.

   (g)Whilst Savvy Academy is only for RSG employees currently, Mr Koziora considers that the hospitality professional training offered by Savvy Academy could be provided to other hospitality providers. The Tribunal notes that in 2016, RSG engaged an external training provider (at significant expense over three years), to prepare all the training materials and content for its employees.

9. On behalf of the applicant, Mr Koziora appeared before the Tribunal on 15 May 2020 to give evidence and present arguments in relation to this case and in relation to two other cases, 1821669 and 1827024. On the basis of the three cases to be heard, the Tribunal held a joint hearing to discuss the applicant’s submission in each case. In relation to this case, the nominee, Mr Pravin Chalise, also gave evidence to the Tribunal.

10. 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

11. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

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). The application must also identify a relevant person and occupation, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

13. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

14. Therefore, it finds that r.5.19(3)(a) is met.

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

15. 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.

16. The Department’s records indicate that RSG was approved as a standard business sponsor between 23 January 2015 and 23 January 2018.

17. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the evidence of its current ABN and ASIC registrations and the multiple financial documents for multiple RSG Group entities  (Financial Statements, ATO Tax returns) that the applicant is actively and lawfully operating a business in Australia.

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

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

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

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

20. The Tribunal has reviewed the occupations specified in IMMI 17/080 for the purposes of the second dot point above and is satisfied that the nominated occupation of Cook is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.

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

    • the nomination was made on 23 December 2017 for the position of (Restaurant) Cook;
    • the relevant 3-year period is therefore 23 December 2014 to 23 December 2017;
    • the nominee applied for a subclass 457 visa on 23 June 2015 on the basis of his nomination by the applicant as Cook;
    • the nominee was initially employed by the applicant commencing 27 July 2015 while the holder of a subclass 457 visa; 
    • he was granted a subclass 457 visa on 8 July 2015, which was valid until 8 July 2019; and
    • he had therefore worked for the applicant in the nominated position for over 2 years prior to the nomination application being lodged.

22. 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)

23. 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.

24. The applicant provided the Tribunal with significant documentation, including Financial Statements, ATO Tax returns, Lease agreements, liquor licence evidence, and payroll statements for employees from 2015 to 2019.

25. An analysis of the Financial Statements of RSG (ABC) Pty Ltd (the Group’s key trading entity) shows as follows:

2016	2017	2018	2019
Total income	$9,802,933	$11,061,845	$10,838,046	$9,142,371
Gross profit	$6,418,196	$7,528,425	$7,422,954	$6,109,695
Total assets	$1,594,338	$1,877,141	$11,786,840	$7,019,119
Total liabilities	$861,279	$1,317,496	$1,287,984	$4,029,387

1. An analysis of the nominee’s employment agreements and salary payments shows as follows:

2016	2017	2018	2019	2020
Agreement	12 June 2015 $53,970	15 December 2017 $56,155	28 June 2019 $56,155
PAYG	$49,870 (commenced 27 July 2015)	$53,979	$55,872	$56,154	Income statement to 3 March 2020: (pre COVID) annualised: $63,174

1. The terms of the nominee’s employment agreements dated 12 June 2015, 15 December 2017 and 28 June 2019 provides a guaranteed base salary initially of $53,970 in 2015 and $56,155 from 2017 and varies the applicant’s Enterprise Agreement providing an additional benefit of $1043.83 of increased annual leave and personal for the nominee. 

2. Mr. Koziora told the Tribunal at hearing that as soon as the COVID-19 restrictions are lifted by the Victorian Government, the applicant will resume trading and that he is confident that the RSG Group will be able to trade its way out of the impact from the COVID19 pandemic. The Tribunal notes that Mr. Koziora had fortuitously sold several of the Group’s businesses in 2019.

3. Based on the documentary, verifiable evidence provided by the applicant, including the nominee’s most recent, updated contract of employment dated 28 June 2019 (which reflects the same terms as the previous contracts dated 2015 and 2017, PAYG statements, Financial Statements and ATO tax returns, the Tribunal is satisfied that the nominee will continue to be employed on a full-time basis for at least 2 years. Further, the Tribunal is satisfied that the applicant remains financially capable of continuing to employ the nominee in his full-time position on a salary of $56,155 plus superannuation, and that the terms and conditions of his employment do not expressly exclude the possibility of extending his period of employment.

4. 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)

5. 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.

6. Unusually, although understandable given the size of the applicant’s enterprise, RSG has its own Enterprise Agreement (using the name Karma.com. Pty Ltd), which as an Enterprise Agreement has been authorised by the Fair Work Commission. It therefore articulates all necessary employment terms and conditions for all RSG employees including the nominee. The Tribunal notes that the RSG, Karma.com Enterprise Agreement contains terms which are consistent with the Hospitality Industry (General) Award 2010 which was provided as documentary reference for the Tribunal’s review. 

7. The Tribunal accepts evidence of the organisational chart provided to the Tribunal that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee. 

8. The Tribunal therefore needs to be satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

9. The nominee’s contract of employment for the nominated position was originally dated 12 June 2015 and provided that the nominee’s salary is $53,970 per year plus superannuation. Documentary evidence provided shows that there was an updated employment contract dated 28 June 2019. At hearing, the nominee confirmed that this contract is ongoing and that his salary is as stated in the contracts of employment and as evidenced by his PAYG summary statements since 2015.

10. The Tribunal has consulted a range of sources of information, including:

    • the Payscale website (accessed 13 June 2020) indicates that a Cook in Australia earns between $43,000 and $57,000  with the median salary being $53,309:
    • the Government’s Job Outlook website (accessed 13 June 2020) which indicates that the average weekly earnings before tax for Cook are $1,068 before tax (or $55,536 before tax annually):
    • advertisements for various full time Cook in all of Melbourne listed on Seek.com.au as at 13 June 2020 where a salary range is given includes roles from $56,000 to $69,999: >

      The Tribunal finds that the nominee’s salary is within the wide range stated on the various websites.

    • The Tribunal notes the evidence provided by director Mr Koziora at the hearing as to the commitment RSG has to the nominee. The nominee was described by Mr Koziora as being very reliable, a good senior Cook, with experience in a full-service restaurant and kitchen with good training, who would be very hard to replace as he is a hard worker and trusted employee.  

    • The nominee told the Tribunal at hearing that he commenced working as a Cook in 2003 and after international experience in Dubai, came to Australia to work expressly for the applicant and is now a senior leader in one of the applicant’s, large and very busy full-service restaurants (Asian Beer Café). He is accountable for opening the kitchen early each day, checking all equipment, freezer temperatures, undertaking as necessary all food preparation, prepping and working with the Executive Chef on menus, training junior cooks on new menus and the like. The nominee also added that he is well treated by RSG.

    • In this case, the Tribunal is satisfied that the applicant company views the nominee as a long term employee and under these circumstances the Tribunal accepts that the nominee’s salary would be no less favourable than that which would be offered to an Australian employee for undertaking the same work in the same location.

    • Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

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

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

    • The Tribunal notes that the applicant’s approval as a standard business sponsor ran between 23 January 2015 and 23 January 2018.

    • The training requirements applicable for an established business with approval as a standard business sponsor in that period in the applicable period are 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 or related 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 who are Australian citizens and Australian permanent residents.

1. Recent expenditure for Training Benchmark B is defined as expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment(s) or a contract for employment of the relevant individual for whom salary payments are being included within expenditure that can count towards the benchmark.

2. Applicable expenditure that can count towards this benchmark includes:

   • payments for Australian employees to undertake a formal course of study, including any reasonable and necessary associated costs (e.g. costs of travelling to the training venue or access an online training programme);
   • payments to RTOs to deliver face-to-face training to Australian employees that will contribute to an Australian Qualifications Framework qualification;
   • purchase of an eLearning platform or standalone training software;
   • payments to cover the salary of Australian employees:
   • engaged by the business as apprentices or trainees under a formal training contract, or who have completed an undergraduate or higher degree in a university within the last 2 years, and are participating in a formal, structured graduate program for up to 2 years, or completing a professional year following their graduation;
   • the salary of a person whose sole role is to provide training to Australian employees;
   • expenditure to attend conferences for continuing professional development.

3. Expenditure that cannot count towards this benchmark includes:

   • on the job training that is not otherwise identified above as applicable expenditure for Training Benchmark B;
   • training that is not relevant to the industry in which the business operates;
   • training undertaken by persons who are principals in the business or their family members;
   • training that has a very low skill level having regard to the characteristics and size of the business;
   • induction training;
   • staff salaries apportioned to time spent undertaking online or other training courses;
   • purchase of software for use in normal duties;
   • membership fees;
   • purchase of books, journals or magazine subscriptions;
   • attending conferences for purposes other than continuing professional development; and
   • hiring a booth at a trades show, conference or expo.

4. At the hearing, Mr Koziora maintained that RSG had a long-term focus to investing in training all of its employee and unusually in this sector, a consistent record of providing training its employees whether Australian or otherwise. The Tribunal notes that the applicant provided expansive documentary evidence in support of its commitment to training its employees.

5. In addition, and specific to the matter of calculations regarding Training Benchmark payments, the representative Mr Agnew provided the Tribunal with an extremely detailed Excel analysis by year and for the entire SBS period, from 2015/2016- 2018/2019. The submission (which is set out over seven separate interlinking spreadsheets), incorporates financials from ATO Tax returns and the Group’s statutory accounts, invoices and remittances to third party training providers, an assessment of all training provided, and an assessment of which training complies with or can be accounted towards Training Benchmark B.

6. The Tribunal having regards to all the material provided by the ap – both at hearing and in submissions, notes that the Group has identified that in the period between 2015/2016 financial year to 208/2019, that it has spent in excess of $1.1m towards training although not all of that spend is attributable to the obligations under Training Benchmark B.

7. The Tribunal is satisfied that the applicant meets the obligations required of it under Training Benchmark B as summarised by the Tribunal below:

RSG CONSOLIDATED PAYROLL   $	TRAINING BENCHMARK B Compliance Expenditure $	%
2016	$4,956,931.00	$42,115.80	0.85
2017	$ 7,562,592.00	250,587.86	3.21
2018	$7,697,656.00	$228,447.00	2.97
2019	$6,020,004.00	$16,950.00	0.28
2016 – 2019	$26,237,183.00	$445,379.36	1.70

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

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

2. 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. 

3. The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

5. 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.

6. There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria relating to workplace relations.

7. The applicant’s director Mr Koziora advised the Tribunal that RSG is regularly audited by the ATO and the Fair Work Commission because it operates in the high-profile restaurant sector. In addition, Mr Koziora further told the Tribunal that on the basis of the significant investment RSG makes in carefully recruiting and then training its employees, RSG has had no issues with the Fair Work Commission. 

8. Accordingly, the Tribunal finds that the requirements of r.5.19(3)(h) are met.

   Genuine need to employ nominee: r.5.19(3)(i)

   60.      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.

   61.      In assessing whether the nominator has a genuine need to employ the person, as a paid employee, to work in the position under the nominator’s direct control, Departmental Policy provides guidance that an assessment must include whether the application identifies and substantiates a continued genuine need for the nominator to employ the identified person to work in the nominated position.

9. The Tribunal has reviewed the position description for the role of the nominee. At hearing, applicant director Mr Koziora described the duties the nominated position involves. The nominee also provided detailed evidence including his day to day role and activities and how that corresponds with the ANZSCO duties. Having regard to the ANZSCO description, the position description and the oral and documentary evidence provided, the Tribunal is satisfied that the duties of the nominated position correspond with those listed within the relevant instrument for the occupation of Cook (ANZSCO 351411).

10. The Tribunal notes that the applicant has submitted extensive documentary evidence including PAYG payment summaries, updated Organisation chart showing how the position fits in to the business structure, menus, daily and weekly work plans, training materials, and promotional and marketing documents.

11. At the hearing, applicant director Mr Koziora stated that the nominee is an important part of a larger team, working closely with the RSG Executive Chefs. Mr Koziora submitted to the Tribunal that the nominee’s international work experience (Dubai), in a large restaurant, reliability and work ethic gives him a unique skill set that is very difficult to find in other applicants. Both Mr Koziora and representative Mr Agnew (long time Counsel to RSG), told the Tribunal that it is exceedingly difficult to get good, skilled employees who want a long-term career in hospitality. With high casualisation and turnover of staff, the applicant had sought to deliver stability to its kitchens and therefore a consistent, reliable food offering for its patrons. The nominee is a trusted, hardworking employee who according to Mr Koziora is not easily replaceable. In addition, the nominated position continues to be relevant to the nature and scope of the business activities of the applicant not the least reason being that the applicant operates several large, busy bars / restaurants serving thousands of customers each day.

12. The Tribunal is also satisfied from evidence provided by Mr. Koziora at hearing that the applicant will reestablish its operations post the lifting of COVID-19 restrictions. Mr. Kozira explained to the Tribunal that he was very keen to commence business operations in full as soon as possible. At the time of decision, the Tribunal notes that both the Asian Beer Café (being the restaurant in which the nominee works) and Father’s Office its other flagship operation, are operational again, albeit within the constrained Victorian Government COVID-19 restrictions.

13. The Tribunal is satisfied that there is a genuine need for the nominee to work in the nominated occupation under the applicant’s direct control.

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

15. 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

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

    Susan Reece Jones
    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.