SW INDUSTRIES PTY LTD (Migration)

[2020] AATA 5461

SW INDUSTRIES PTY LTD (Migration) [2020] AATA 5461 (30 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SW INDUSTRIES PTY LTD

CASE NUMBER:  1803993

HOME AFFAIRS REFERENCE(S):          BCC2017/3719663

MEMBER:Susan Reece Jones

DATE:30 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 30 October 2020 at 11:54am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Technical Sales Representative – financial capacity to maintain employment – extensive evidence as to the activities and financial status of the applicant’s business – decision under review set aside

LEGISLATION
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 6 February 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).

1. The applicant applied for approval on 11 October 2017. The requirements for the approval of the nomination of a position of Technical Sales Representative (ANZSCO nec – 225499); 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).

1. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

1. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3)(d) of the Regulations because the applicant had not demonstrated that it had the financial capacity to be able to pay the full-time salary and other employment conditions for the nominated position for at least 2 years.

1. The Tribunal received a review application on 15 February 2018. It was signed on behalf of the applicant by director, Mr James Stewart, and was accompanied by a copy of the delegate’s decision.

1. On 15 June 2020, the Tribunal wrote to the applicant’s sole director via the representative, Mr Ian Singer of Australia Migrate Pty Ltd, pursuant to s.359(2), 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.

1. On 26 June 2020, the applicant provided the Tribunal with the following documents:

• ASIC Current and Historical; Extracts dated November 2019 and 24 June 2020

• Letter from Accountant Geoff Cottle dated 15 March 2018 and 24 June 2020

  • Business Activity Statements (BAS) 2017, 2018, 2019, 2020
  • Financial Statements: 2016, 2017, 2018,
  • ATO Tax Returns 2018, 2019
  • Training Expenditure Part B payment receipts
  • Organisation Chart (18 employees all Australian with the exception of 2)
  • Nominee Employment Contracts dated 2017, 2019 and 2020
  • Position Description
  • Nominee PAYG
  • Nominee Payslips from September 2015-2017
  • Nominee ANZ Bank account with salary payments
  • Nominee UK Bank account with salary payments
  • Contracts / drawings / Quotes / Letter from international supplier in Scotland
  • Genuine position statement

1. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. The applicant appeared before the Tribunal on 21 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from applicant director, Mr James Stewart and the nominee Mr Matthew Bell.  

1. The applicant was represented in relation to the review by its registered migration agent.

1. 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

1. 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)

1. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a 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.

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

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

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

1. 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.

1. The Department’s records indicate that the applicant was first approved as a standard business sponsor from 15 October 2013 to 15 October 2016 and more recently from    19 May 2017 to 19 May 2022.

1. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Matthew Bell, and nominated him for a subclass 457 visa.  The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

2. In relation to whether the applicant is actively and lawfully operating a business in Australia, the applicant has provided evidence of its current ASIC and ABN registration, its Financial Statements for 2016 to 2018, ATO Tax Returns for 2018 and 2019, and its Business Activity Statements (BAS) for 2017 to 2020, which show that it is actively trading.

1. A core business of the applicant includes the local manufacture and sale of timber doors and windows (sourced from the applicant’s favoured overseas factories) and furniture.   The applicant is located in Vineyard, NSW and is part of the SW Industries Group of companies, a family owned and run business which which amongst other things, trades under the business name of Furniture Down Under. The Tribunal notes that the applicant currently also trades using the following business name(s):

   ·     HAWKESBURY BATHROOMS 09 Feb 2018 (current)

   ·     HAWKESBURY KITCHENS 09 Feb 2017 (current)

   ·     FURNITURE CLEARANCE COMPANY 28 Jul 2008 (current)

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

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

1. 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.

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

   • the nomination was made on 11 October 2017 for the position of Technical Sales Representative (ANZSCO nec – 225499);
   • the relevant 3-year period is therefore 11 October 2014 to 11 October 2017;
   • the nominee was initially employed by the applicant whilst residing in the UK and then in Australia from 4 September 2015 while the holder of a 457 visa;
   • the nominee applied for a subclass 457 visa on 8 October 2013, on the basis of his nomination by the applicant and was granted a 457 visa on 22 October 2013;
   • he was granted a subclass 457 visa on 22 October 2013, which was valid until 22 October 2017; and

he had therefore worked for the applicant in the nominated position for approximately 2.1 years prior to the nomination, and for 2.1 years in the 3-year period immediately prior to the nomination application being lodged.

1. 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)

1. 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.

1. The Department refused the nomination because the applicant did not show a financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.

1. At the hearing, the applicant’s director, Mr Stewart, provided extensive evidence as to the activities and financial status of the applicant’s business. In summary, he indicated that the applicant:

   a.is one part of a larger group companies, collectively with an annual turnover in excess of $8.5m p.a.            

   b.employs (as at the date of hearing), approximately 14 employees of which all but 2 are Australians

   c.invests heavily in training all of its employees on a continuous basis

   d.finds its extremely hard to find good, reliable, skillful employees

   e.is expanding its range and marketing to focus on Australian made products.

2. Further, Mr Stewart told the Tribunal, a core business of the applicant includes the manufacture and sale of timber doors and windows (sourced from the applicant’s favoured overseas factories and locally) and sales of furniture.

1. The Tribunal’s analysis of the applicant’s financial evidence shows as follows:

$	2016	2017	2018	2019	2020*
Total income	3,690,570	4,906,953	4,457,528	5,181,600	5,881,423
Gross profit	1,845,576	2,824,382	2,392,127	2,677,883	2,050,229
Total Assets	790,430	880,338	718,109	1,206,160
Total Liabilities	680,312	561,572	493,147	928,510

*Draft 2020 Financials

1. The nominee’s PAYG summary shows as follows:

($74,000 contracted salary)	2016	2017	2018	2019
PAYG $	31,990	80,560	85, 862	98,748

1. Mr Stewart told the Tribunal that the nominee initially commenced working remotely with applicant when still in the UK and the applicant paid to nominee a salary into the nominee ‘s UK bank account. The Tribunal was provided with evidence to show the salary payments made to the nominee’s UK bank account at this time. The nominee commenced work in Australia with the applicant in late 2015, hence the lower salary in the 2016 financial year. The Tribunal notes that the applicant also provides the nominee with a car and a financial incentive to achieve a commission based on sales.

1. Whilst a key task of the nominee’s role includes managing the applicant’s large existing client base, the applicant also requires the nominee to source new business. The applicant according to Mr Stewart, is growing rapidly, has a diversified its product offer and relies heavily on the nominee’s skills in growing the applicant’s business. Mr Stewart noted to the Tribunal at hearing that the applicant’s marketing and promotion skills have created significant new business for the applicant through an Australian made campaign which has  resulted in strong sales for the applicant to the extent that it has not had to rely on Job Keeper support and instead has thrived during COVID-19.

1. Mr Stewart further told the Tribunal that the applicant, on the initiative of the nominee, has recently implemented an extended warranty system for customers, upweighted its Australian manufacturing operations and products, and diversified the product range and the sales performance of the applicant has grown substantially. In addition, the nominee’s specific skills in energy assessment and thermal efficiency is highly regarded by the applicant. His technical skills relating to these products are such that the applicant is highly reliant upon the nominee’s skill set to assist the applicant in building this segment of business. Further, Mr Stewart advised the Tribunal that the applicant is weathering the COIVD-19 challenges well to the extent that its business has not been significantly impacted.

1. Given the additional material provided to the Tribunal, and review of the ongoing operations of the applicant since the delegate’s decision, the Tribunal is satisfied that the applicant has the financial capacity to continue to employ the nominee on a full-time basis for at least 2 years.

1. 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)

1. 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.

1. The Tribunal’s analysis of the nominee’s Employment Agreements notes as follows:

Employment Agreements	Agreement #1 September 2015	Agreement #2:                September 2017	Agreement #3: June 2020
Salary	$ 74,000	$95,000	$95.000
Superannuation	9.5%	9.5%	9.5%
Other	Car plus commission package	Car plus commission package	Car plus commission package

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

   • the Payscale website (accessed 17 October 2020) indicates that a Technical Sales Representative in Australia earns an average salary range being from $ 51,000 and $90,000 annually:
   • advertisements for experienced Technical Sales positions in Sydney listed on Seek.com.au as at 17 October 2020 where a salary range is given up stated to be between $80,000 - $100,000.

2. The Tribunal finds that there is no equivalent Australian employee. From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid, and is in fact at the higher end of the salary scale for a Technical Sales Representative in Australia.

3. The Tribunal is further satisfied that the nominee’s most recent contract of employment dated 15 June 2020 has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

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

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

1. 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.

2. The applicant’s first Standard Business Sponsorship commenced on 15 October 2013 to 15 October 2016 and more recent Standard Business Sponsorship from 19 May 2017 to 19 May 2022.

3. Specifically, the training requirements applicable for an established business with approval as a standard business sponsor in that period are set out in written instrument IMMI 13/030 as follows:

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

4. IMMI 13/030 provided that expenditure that can count towards Training Benchmark B includes:

   • paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy

• funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy

• employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business

• employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job

• evidence of payment of external providers to deliver training for Australian

employees

• on-the-job training that is structured with a timeframe and clearly identified

increase in the skills at each stage, and demonstrating:

• the learning outcomes of the employee at each stage;
• how the progress of the employee will be monitored and assessed;
• how the program will provide additional and enhanced skills;
• the use of qualified trainers to develop the program and set

assessments; and

• the number of people participating and their skill/occupation

1. However, it does not include expenditure on training that is:

   • delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
   • confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity
   • only undertaken by persons who are not Australian citizens or permanent residents
   • only undertaken by persons who are principals in the business or their family members
   • only relating to a very low skill level having regard to the characteristic and size of the business.

2. The applicant provided the Tribunal with evidence of the applicant’s compliance with the Training Benchmark B provisions with itemised invoices in addition to a supporting letter from its training provider. The applicant director Mr Stewart told the Tribunal at hearing that the applicant has had a long-standing relationship with training provider, ‘Training for Life’ and its principal, Mr Keith Wilson, who has a ‘solution selling’ training package. The training provider Mr Stewart told the Tribunal, focuses on a wide range of skills including proactive selling skills and that all employees must attend the training. He further noted to the Tribunal that the training is designed to ensure all employees “do not get complacent” and that the training is designed “to keep us all sharp”.

1. In the circumstances, the Tribunal finds that there is insufficient evidence to demonstrate that the applicant has met Training Benchmark B during the term of its first standard business sponsorship approval, which was from 15 October 2013 to 15 October 2016. No evidence was provided of the applicant meeting Training Benchmark A or B during this period.

2. Given that the Tribunal cannot be satisfied that the applicant fulfilled its commitments during the initial SBS period, the Tribunal has considered whether it is reasonable to disregard this requirement and therefore the Tribunal has assessed the applicant’s payroll and Training Benchmark B submission over the period 2016 to 2018:

$	2016	2017	2018
Total Payroll expenses	564, 991	500,707	741,451
1%	5,549	5,007	7,414
Staff Training invoices	6,674	7,929	7,369

1. Weighing in favour of assessment over the period from 2016 to 2018 is the fact that the applicant was approved as a standard business sponsor in the first place which requires the Department to be satisfied of the applicant’s commitment to training its Australian employees.

2. The Tribunal notes that since the 2016 financial year, the applicant demonstrated that it has met the Training Benchmark B requirements which was evidenced by invoices and outlined to the Tribunal by Mr Stewart at hearing.

3. The Tribunal is also satisfied that the expenses claimed against Training Benchmark B are evidence of payment of external providers to deliver training for Australian employees which can be counted towards meeting Training Benchmark B requirements.

4. On balance, the Tribunal considers it is appropriate to disregard the requirement in r.5.19(3)(f)(i) in view of the applicant’s overall commitment to training. The Tribunal is therefore satisfied that the applicant meets Training Benchmark B in relation to its recent training expenditure.

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

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

1. 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. 

2. 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.

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

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

1. 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.

2. There is no evidence before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or New South Wales by the applicant.

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

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

1. 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.

1. The applicant’s director Mr Stewart submitted that the role of nominee encompasses both technical sales of its current ranges of plus introducing a new range of energy efficient products not limited to but including, Low E Glass, Double Glazing and specialist Thermal Coatings. The applicant further expects to introduce a new range of UPVC Doors and Windows for the Commercial and Industrial markets based on the skill and knowledge brought to the applicant by the nominee due to his UK derived technical experience in the sector.

2. In addition, Mr Stewart told the Tribunal at hearing that the nominee’s specific skills in energy assessment and thermal efficiency are highly regarded by the applicant and critical to its business development plans. The nominee’s technical skills relating to the applicant’s new products are such that the applicant is highly reliant upon the nominee’s skill set to assist the applicant in building this new and fast-growing segment of business.  

3. Whilst a key task of the nominee’s role includes managing the applicant’s large existing client base, it also requires the nominee to source new business. The applicant according to Mr Stewart, is growing rapidly, has a diversified product offer and is highly reliant on the nominee’s skills in growing the applicant’s business.

4. Mr Stewart also noted to the Tribunal at hearing that the nominee’s marketing and promotion skills have created significant new business for the applicant in COVID-19 through the launch of an Australian made campaign. This has resulted in strong sales for the applicant to the extent that it has not had to rely on Job Keeper support and instead has thrived during COVID-19. The applicant through the nominee’s initiative, has also implemented an extended warranty system for customers, upweighted its Australian manufacturing operations and products, and diversified the local product range and the sales performance of the applicant has grown substantially, despite COVID-19.

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

6. 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

1. 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)

…

1. 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

1. 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.