STUDENT BIRYANI PTY LTD (Migration)

[2020] AATA 2482

STUDENT BIRYANI PTY LTD (Migration) [2020] AATA 2482 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  STUDENT BIRYANI PTY LTD

CASE NUMBER:  1717727

DIBP REFERENCE(S):  BCC2017/2289232

MEMBER:Mr S Norman

DATE:17 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.  

Statement made on 17 March 2020 at 10:45am

CATCHWORDS
MIGRATION – nomination ­– Temporary Residence Transition nomination – Corporate General Manager – no convincing evidence to show financial capacity to pay the nominated full-time salary for the nominated position – adverse information regarding the applicant known to the Department – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 359, 376

Migration Regulations 1994, 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 Immigration on 9 August 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). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for approval on 28 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations.

4. The applicant (represented by Mr Khurshed JAN) appeared before the Tribunal on 20 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (Mr Muhammad JAVED); and the applicant’s accountant (Mr Jamil ISLAM). The applicant was represented in relation to the review by its registered migration agent.

5. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The applicant/nominator (Student Biryani Pty Ltd) lodged a nomination approval application on 28 June 2017. The nomination type was ‘Temporary Residence Transition’ stream; and the nominee/visa applicant was Javed, Muhammad (DOB: 01/01/1955). The nominated position was a Corporate General Manager (ANZSCO: 111211).

8. Numerous evidence and submissions were lodged by and on behalf of the applicant. Though not all have been expressly referred to herein, the Tribunal has had regard to all evidence and submissions prior to drafting its findings.

   Future employment of the visa holder: r.5.19(3)(d) and s.376 Certificate

9. 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.

10. At hearing, the Tribunal put information to the applicant pursuant to s.359AA. That related to a s.376 Certificate which identified a ‘dob-in’ report received by the Department. As stated at hearing, the gist of the information in the dob-in report, was that the applicant ‘manipulated wages’, that the applicant did not ‘employ permanent staff’, and that the applicant did not provide access to proper leave. The Tribunal noted that it accepted the s.376 Certificate was valid (and a copy was handed to the applicant’s agent at hearing); and that even if it was not, the Tribunal was concerned about putting evidence to the applicant that might identify the informant.  The applicant said that it was false, and the Tribunal said that further comment about this may be included in post hearing submissions if the applicant wished to do so. In post hearing submissions, the applicant inter alia listed names of permanent staff (further post-hearing evidence and submissions have been discussed below).  

11. Next, in the Department delegate’s decision it was stated the applicant was provided an opportunity to lodge further information and submissions in support of the nomination application, however, no further material information was lodged at the time of the delegate’s decision. After then considering whether the nominator would provide the visa applicant with full-time employment for at least two years, and in the absence of any verifiable evidence before them, the delegate was not satisfied the applicant met r.5.19(3)(d)(i).

12. In response to the Tribunal s.359(2) letter dated 12 December 2019 (emailed to the authorised recipient), the applicant lodged:

    ·     A job description for the nominated position:[1]

    [1] Tribunal – folio 48.

    ·     organisers day-to-day operations of Student Biryani P/L through managers and subordinates

    ·     planning and executing policies and objectives of the organisation

    ·     providing day-to-day directions to the staff at all levels

    ·     coordinate with internal and external accountants, sales and marketing managers, purchasing officer and operational staff

    ·     consulting with bank department heads and subordinates for equipment finance or other related matters and dealings

    ·     representing the organisation and arrange training seminars and preparation of report budgets and forecast and review profitability of the organisation

    ·     ensuring that all statutory requirements of the organisation are met

    ·     supervising sales, purchases and marketing of the organisation

    ·     Further advice about the visa applicant’s duties (briefly) included:[2]

    [2] Tribunal – from folio 58.

    ·monitor cash flows

    ·monitor the stocks for current and future requirements

    ·evaluate staff performance

    ·execute the internal control policies and budget plans

    ·establish the strategical stretch in the local business of the family restaurant

    ·prepare financial plans and budgets

    ·acquire an existing restaurant facility or a site where a reasonable amount of investment can be made, expand franchise

    ·implement internal controls and policies

    ·ensure communication strategies in place and that all stakeholders can contribute

    ·ensure the priorities are set and the significance of the matters

    ·ensure food safety

    ·ensure that all works and accounts are up to date

    ·preparing sales targets

    ·appraise staff efficiency

    ·interview all new staff for key positions

    ·consult with bank department heads and subordinates for equipment finance other bank related matters

    ·represent the organisation arrange training seminars and preparation of reports on budgets and forecasts and review profitability

    ·represent the organisation and invite dignitaries and celebrities

    ·represent the applicant with other organisations

    ·ensure that all statutory requirements of the organisation are met

    ·supervising sales, purchases and marketing of the organisation

    ·purchases and capital expenditures

    ·marketing and advertising

13. In further submissions to the Tribunal, the visa applicant’s employment history was set out. By submissions of 10 January 2020, the agent provided further evidence of duties:

    ·     Cash flow monitoring

    ·     stock and staff strength reviews

    ·     quality assurance performance

    ·     management reporting

    ·     strategical stretch (it was stated the prior years sales of $4 million was evidence of the visa applicant’s efforts to keep the strategy and action) 

    ·     financial planning and budget preparation and approvals

    ·     interstate and regional growth opportunities

    ·     franchising expansions

    ·     implementation of policy and procedures

    ·     plant and equipment plan (it was also stated the applicant had imported breadmakers which was specifically designed to prefer Pakistan bread in the restaurant)

    ·     providing day-to-day directions to staff at all levels

    ·     coordinating with internal and external accountants, sales and marketing managers, purchasing officer and operational staff

    ·     sales planning

    ·     marketing and advertisement planning

    ·     operational staff

    ·     hiring, induction and training of staff

    ·     consulting with banks department heads and subordinates for equipment finance other bank related matters

    ·     representing organisation and arrange training seminars and preparation of reports budgets and forecast and review profitability of the organisation (reference was made to an interview by SBS television program called “Small Business Secrets – Season 4”)

    ·     ensuring that all statutory requirements of the organisation are met

    ·     supervising sales, purchases and marketing of the organisation

    ·     photographs of the visa applicant with inter alia the former Consulate General of Pakistan (Mr Muhammad Javed & Mrs Nasra Bano)

    ·     employment contract dated 11 June 2013

14. The ANZSCO description of a Corporate General Manager (ANZSCO: 111211) states:

    UNIT GROUP 1112 GENERAL MANAGERS

    GENERAL MANAGERS plan, organise, direct, control and review the day-to-day operations and major functions of commercial, industrial, government and defence organisations through departmental managers and subordinate executives.

    Indicative Skill Level:
    In Australia and New Zealand:
    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    Tasks Include:

    oplanning policy, and setting standards and objectives for organisations

    oproviding day-to-day direction and management of organisations, and directing and endorsing policy to fulfil objectives, achieve specific goals, and maximise profit and efficiency

    oassessing changing situations and responding accordingly by issuing commands and directives to subordinate staff

    oconsulting with immediate subordinates and departmental heads on matters such as methods of operation, equipment requirements, finance, sales and human resources

    oauthorising the funding of major policy implementation programs

    orepresenting the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility

    opreparing, or arranging for the preparation of, reports, budgets and forecasts, and presenting them to governing bodies

    oselecting and managing the performance of senior staff

    omay undertake responsibility for some or all of accounting, sales, marketing, human resources and other specialist operations

    Occupations:

    111211 Corporate General Manager
    111212 Defence Force Senior Officer

    
    111211 CORPORATE GENERAL MANAGER
    Alternative Title:

    Chief Operating Officer

    Plans, organises, directs, controls and reviews the day-to-day operations and major functions of a commercial, industrial, governmental or other organisation through departmental managers and subordinate executives.  
    Skill Level: 1
    Specialisations:

    Assistant Commissioner (Police)
    Hospital Administrator
    Managing Editor
    Trade Union Secretary

15. At hearing, the Tribunal noted that the work of the visa applicant might more closely reflect that of an operations manager (which is not listed in ANZSCO – see the following[3]):

    [3] From ‘Operations Manager Job Description’, 21 May 2019, Betterteam, , accessed 19 February 2020; also see ‘The Role of an Operations Manager’, 22 February 2019, CHRON, , accessed 19 February 2020; ‘Operations Manager Job Description’, TopResume, , accessed 19 February 2020; ‘Operations Manager Job Description’, 19 November 2018, Totaljobs, , accessed 19 February 2020.

    Operations Manager Responsibilities:

    ·     Provide inspired leadership for the organization.

    ·     Make important policy, planning, and strategy decisions.

    ·     Develop, implement and review operational policies and procedures.

    ·     Assist HR with recruiting when necessary.

    ·     Help promote a company culture that encourages top performance and high morale.

    ·     Oversee budgeting, reporting, planning, and auditing.

    ·     Work with senior stakeholders.

    ·     Ensure all legal and regulatory documents are filed and monitor compliance with laws and regulations.

    ·     Work with the board of directors to determine values and mission, and plan for short and long-term goals.

    ·     Identify and address problems and opportunities for the company.

    ·     Build alliances and partnerships with other organizations.

    ·     Support worker communication with the management team.

    Operations Manager Requirements:

    ·     Bachelor’s degree in operations management or related field.

    ·     Experience in management, operations, and leadership.

    ·     Understanding of general finance and budgeting, including profit and loss, balance sheet and cash-flow management.

    ·     Ability to build consensus and relationships among managers, partners, and employees.

    ·     Excellent communication skills

    ·     Solid understanding of financial management.

16. In response, the applicant repeated much of which was stated above, with respect to the duties he performed in the position of Corporate General Manager. After considering same, there was clear cross-over between the work performed by the visa applicant in the nominated position (Corporate General Manager), and those duties which are to be performed in the lesser-grade position of an Operations Manager. However, at hearing the applicant explained how the business was seeking to build franchises (documentary evidence of same was lodged), though no franchise (other than the main business) was currently operational. The applicant also said the profitability of the business in the last few years (set out below), had increased, and this was evidence of the more high-level efforts of the visa applicant in promoting the business. Given the Tribunal accepts that a substantial amount of the work the visa applicant is said to engage in, reflects that which is suitable for a Corporate General Manager, the Tribunal will accept the position he is proposed to be employed in is a Corporate General Manager position.

17. Next, in response to the Tribunal s.359(2) letter dated 12 December 2019 (emailed to the authorised recipient), the applicant also lodged:

    ·     Photographs, including with a former member of parliament, Consulate General of Pakistan, etc[4]

    ·     A Tax Receipt[5], and Notice of assessment – year ended 30 June 2015[6]

    ·     Company tax return 2019[7] - total profit $680,598

    ·     An Income statement for year ending 30 June 2019 – Net Profit after Tax $493,434[8]

    ·     A Income statement for year ending 30 June 2018 – Net Profit after Tax $173,481[9]

    ·     An Organisation chart (undated) – listing the visa applicant as the Corporate General Manager – and referring to a Board of Directors and numerous other current and proposed staff[10]

    [4] Tribunal – from folio 46.

    [5] Tribunal – folio 46 (reverse side).

    [6] Tribunal – folio 46.

    [7] Tribunal – from folio 64.

    [8] Tribunal – folio 86.

    [9] Tribunal – folio 77.

    [10] Tribunal – folio 59 (reverse side).

18. Next, by submissions of 10 January 2020, the agent lodged:

    ·     PAYG Payment summary relating to the visa applicant for year ending 30 June 2017 – gross payments $181,000[11]

    [11] Tribunal – folio 10.

    ·     Balance Sheet year ending June 2017 – net assets ($24,352.07)[12]

    [12] Tribunal – folio 13.

    ·     Profit and Loss Statement, July 2016 through June 2017 – net profit $237,489.46[13] / wages and salaries $606,422.42 / Training expenses $13,321

    [13] Tribunal – folio 14.

    ·     Notice of assessment – year ended 30 June 2015 – taxable net income $24,836

    ·     Company – Annual Accounts year ending 30 June 2018 - net profit after dividends paid $173,481

    ·wages and salary $434,370 / owner wages and salary $278,140 / total employee cost $803,375

    ·     Company – Annual Accounts year ending 30 June 2019 - net profit after dividends paid $493,434

    ·wages and salary $460,517 / owner wages and salary $286,000 / total employee cost $853,109

    ·     Activity statements[14]

    ·July to September 2017 – total sales $655,255 / total salary, wages and other payments $45,360

    ·October to December 2017 – total sales $734,384 / total salary, wages and other payments $50,879

    ·January to March 2018 – total sales $785,658 / total salary, wages and other payments $69,357

    ·April to June 2018 – total sales $851,200 / total salary, wages and other payments $62,453

    ·     Total salary payment for the FYE ending 30 June 2018 - $$228,049

    ·     Company Tax Return 2019 – taxable net income $680,599

    ·     Organisation chart listing a Board of Directors, Corporate Gen manager, sales marketing manager, franchise manager, purchase officer, accounts officer, purchase supervisor, restaurant manager, recipe advisor (and numerous other staff)

    [14] Tribunal – from folio 69.

19. At hearing, the applicant (Mr Jan) explained that the business had approximately 8-10 full time staff and approximately 10-12 part time staff (amounting to 20 staff members); for the past few years. The visa applicant believed there were approximately 4-5 full time staff (at least around 2017) and approximately 8-10 part time staff. However, both the applicant and the visa applicant agreed that staffing levels had risen in the last few years.

20. When asked at hearing, the applicant said the visa applicant had been employed in the position of Corporate General Manager from 2017 (and as noted above, the PAYG Payment summary relating to the visa applicant for year ending 30 June 2017 identified gross payments of $181,000[15]). The applicant also said the visa applicant remained employed in that positon, and was being paid the nominated amount, to date. The Tribunal noted that based on the Activity Statements lodged for the FYE ended 30 June 2018 (referred to above), the total salary, wages and other payments identified had amounted to $228,049 for the financial year. Even if the Tribunal accepted the evidence of staffing levels expressed by the visa applicant (being those most advantageous to the applicant), that would mean that in the 2017/2018 financial year, after paying the visa applicant around $180,000, there remained just over $48,000 to pay the other 4 or 5 full time staff and also pay the 8-10 part time staff for the same period. The Tribunal said this did not appear plausible.

    [15] Tribunal – folio 10.

21. It was submitted at hearing that some Activity Statements may only identify total salary, wages and other payments for a one month period. The Tribunal noted that Activity Statements for a shorter period may identify total salary, wages and other payments only for that period, but the Activity Statements identified above, were for three months periods (for the 2017/2018 financial year).

1. The applicant agreed to lodge post-hearing submissions seeking to establish that the Activity Statements referred to above, only identified total salary, wages and other payments for one month of each three month period.  The Activity Statements then lodged post-hearing were (amongst others):

   ·     July to September 2017 – total sales $655,255 / total salary wages and other payments $45,360

   ·     July 2017 – total salary wages and other payments $47,299

   ·     August 2017 – total salary wages and other payments $44,043

   ·     October to December 2017 – total sales $734,384 / total salary wages and other payments $50,879

   ·     October 2017 – total salary wages and other payments $60,609

   ·     November 2017 – total salary wages and other payments for $47,995 

   ·     January to March 2018 – total sales $785,658 / total salary wages and other payments $69,357

   ·     January 2018 – total salary wages and other payments $65,532

   ·     February 2018 – total salary wages and other payments $56,273

   ·     April to June 2018 – total sales $851,200 / total salary wages and other payments $62,453

   ·     April 2018 – total salary wages and other payments $74,526

   ·     May 2018 – total salary wages and other payments $64,594

   ·     July to September 2018 – total sales $1,010,166 / total salary wages and other payments $64,046

   ·     October to December 2018 – total sales $1,118,885 / total salary wages and other payments $82,709

   ·     January to March 2019 – total sales $1,099,615 / total salary wages and other payments $52,295

   ·     April to June 2019 – total sales $1,260,880 / total salary wages and other payments $47,789

   ·Total salary payment for the FYE ending 30 June 2019 - $246,836 (calculations based on adding the salary payments identified in those Activity Statements said to be for a three month period)

2. In post hearing submissions, the applicant also had lodged inter alia evidence of payroll summary/s; and evidence of (at least) four full time staff for FYE 2017-2019. The Tribunal also requested other information from the applicant post hearing. These included:

   ·     Notice of Assessment for the visa applicant for the 2017/2018 and the 2018/2019 financial years. In post-hearing submissions, the following was lodged:

   ·     Notice of Assessment for the visa applicant for year ended 30 June 2018 – taxable income $181,000 

   ·     Notice of assessment for visa applicant for year ended 30 June 2019 – taxable income $184,603   

   ·     Notice of Assessment for other full time employees of the applicant’s business for the 2017/2018 and the 2018/2019 financial years

   ·     Notice of assessment for Nasra BANO  for year ended 30 June 2018 – taxable income $73,553 

   ·     Notice of assessment for Nasra BANO  for year ended 30 June 2019 – taxable income $82,314  

   ·     Notice of assessment for Muhammad Irfan for year ended 30 June 2018 – taxable income $21,011

   ·     Notice of assessment for Muhammad Irfan for year ended 30 June 2019 – taxable income $48,938 

   ·     Notice of assessment for Masir Mohammad for year ended 30 June 2018 – taxable income $49,292 

   ·     Notice of assessment for Masir Mohammad for year ended 30 June 2019 – taxable income $48,723  

   ·     Evidence of Work Cover Insurance – for the last two complete financial years (and the Tribunal noted that declared annual wages should be identifiable on that information – and that any substantial discrepancies between the declared wages and the other evidence of wages lodged, should be explained):  

   ·     The Payroll Employee Summary for FYE ended 30 June 2019 – earnings $746,517.47 (net pay $603,021.47) / total superannuation payable $84,017.05 (total deposited $84,016.95)

   ·     The Payroll Employee Summary for FYE ended 30 June 2018 - earnings $712,509.80 (net pay $565,163.26) / total superannuation payable $66,304.46

   ·     Icare Worker Insurance ‘Declaration of actual wages’ – 28/02/2018 to 28/02/2019 $986,448

   ·     Icare Worker Insurance ‘Declaration of actual wages’ – 28/02/2019 to 28/02/2020 $718,312 

3. In the agent’s post-hearing email dated 9 March 2020, it was also stated:

   Mr Rahim Mudin, who was a Full-Time Cook in the 2017/18 Financial Year has since left the business and relocated to Adelaide. Numerous efforts have been made to contact him and obtain his consent to provide his Notice of Assessment; however they have been unsuccessful. Without his consent, the business cannot provide his private documents. If he is able to be contacted, and consent is given, the Notice of Assessment will be provided.

   Mr Muhammad Naveed only recently lodged his Tax Return. The Accountant for the Company has been unable to access his Notice of Assessment using the Xero Software; which he is currently trying to resolve. We will provide a copy of the Lodged Tax Return Summary, and provide the Notice of Assessment as soon as it can be received from the Xero Software.

   Mr Muhammad Irfan does not show on the payroll/organisation chart as he is currently absent from work and receiving payments through Work Cover. Once Mr Irfan recovers from his injury, it is hoped he will return to work with the Nominator. At that time he will return to the Organisation Chart and be recorded on the Payroll.

   I am also instructed that to ensure transparency with the Member, the Accountant is currently organising the same information for all the Part-Time Employees. I am instructed that this information should be provided before close of business tomorrow.

4. After considering same, the Tribunal has decided not to await the further evidence referred to above. That being said, the Notice of Assessment for the visa applicant for the FYE year ending 30 June 2018, indicated a taxable income $181,000. This would mean the three other full time staff employed (and the part time staff employed) in the same period shared the remaining just over $48,000 (for the year). The Tribunal does not accept this is plausible; and I am satisfied the evidence of wages in the year ending 30 June 2018 is not reliable. The Tribunal is also satisfied this supports the ‘dob-in’ evidence that the applicant ‘manipulated wages’. Given the Tribunal has therefore rejected material evidence lodged, the Tribunal is not satisfied it should extend to the applicant the benefit of the doubt about any other period.

5. Therefore, the Tribunal is not satisfied the applicant has the capacity to employ the nominee on a full time basis, for at least 2 years. Given the above findings, the requirement in r.5.19(3)(d) is not met.

6. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

   DECISION

7. The Tribunal affirms the decision under review to refuse the nomination.

   Mr S Norman
   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.