The Indigo Olive Pty Ltd ATF The Indoki Family Trust (Migration)

[2019] AATA 4840

The Indigo Olive Pty Ltd ATF The Indoki Family Trust (Migration) [2019] AATA 4840 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Indigo Olive Pty Ltd ATF The Indoki Family Trust

CASE NUMBER:  1710878

DIBP REFERENCE(S):  BCC2016/2919265

MEMBER:Terrence Baxter

DATE:6 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 06 November 2019 at 12:06pm

CATCHWORDS
MIGRATION – Temporary Residence Transition stream – employer’s nomination of position – training requirements – on-the-job training by production supervisor – percentage of production supervisor’s time spent training employees – decision under review set aside

LEGISLATION

Migration Regulations 1994 (Cth), r 5.19(3)(f)(i)(A)

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

2. The applicant, The Indigo Olive Pty Ltd as Trustee for the Indoki Family Trust, applied for approval on 2 September 2016 in its registered business name Flamin’ Food. The applicant nominated Devinder Singh (the nominee) in the position of Customer Service Manager. 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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the delegate found that the applicant had not established that it had fulfilled the commitments that the company had made to meeting its training requirements during the period of its most recent approval as a standard business sponsor (as required by r.5.19(3)(f)(i)(A)), and that, considering r.5.19(3)(f)(ii), it was not reasonable to disregard r.5.19(3)(f)(i).

5. Mr Robert Scobie, on behalf of the applicant, appeared before the Tribunal on 11 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Devinder Singh. 

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

7. 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

8. 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.

   Evidence presented before the hearing

9. The applicant provided to the Department a number of documents including a Letter of Engagement of the nominee dated 1 September 2016, financial statements, training invoices and evidence of payment thereof, and Activity Statements. The applicant also made submissions to the Department before and after the date of the delegate’s decision on 4 May 2017.

10. The applicant provided to the Tribunal prior to the hearing further documents including:

    a.Updated Australian Business Name and Australian Securities and Investment Commission searches;

    b.An Organisational Chart with the nominee as Customer Service Manager;

    c.The applicant’s 2018 Profit and Loss Statement and Balance Sheet with 2017 comparative figures;

    d.Current payslips for the nominee;

    e.A Position Description for the position of Customer Service Manager;

    f.Wage Subsidy Agreements for various employees of the applicant in the 2015 and 2016 years;

    g.PAYG Payment Summaries for those employees in the same years; and

    h.Submissions.

    Evidence presented at the hearing

11. Mr Scobie gave evidence at the hearing regarding the business operations of the applicant, the emphasis which the applicant places on training of employees and the nature of that training, and the role played by the nominee in the applicant’s operations. The nominee gave evidence of his employment history with the applicant and his future intentions regarding employment.

12. Mr Scobie described the nature of the applicant’s business as a food manufacturer. The company prepares and supplies packaged foods to various organisations such as Bunnings. The company also supplies a number of outlets such as food vans, service stations and convenience stores The company uses five delivery vans for the delivery of products daily, and supplies outlets over a wide geographic area including Gympie to the north, Ipswich to the west and Tweed to the south. The company has a production staff of approximately 15 and five in the sales, drivers and administration area. At busy times such as the Exhibition, the number of staff increases.

    Documentary evidence presented at and subsequent to the hearing

13. At and subsequent to the hearing, the applicant produced further documents including:

    a.Evidence of terms and conditions of employment for the position;

    b.A certificate from the applicant regarding the nominee’s employment;

    c.A further Letter of Engagement dated 1 August 2019;

    d.Further submissions;

    e.The applicant’s 2018 tax return;

    f.The applicant’s March 2019 Business Activity Statement;

    g.Unaudited Profit and Loss Statement for July and August 2019;

    h.Statutory Declaration from Mr Scobie regarding the applicant’s training of employees;

    i.PAYG Payment Summaries for the applicant’s Production Supervisor Judith Smith;

    j.The nominee’s PTE Academic Test Taker Score Report; and

    k.The applicant’s 2016 Profit and Loss Statement.

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

14. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958 (the Act). The application must also identify a relevant person and occupation.

15. Having regard to the information provided by the Department, the Tribunal is satisfied that the application for approval was made on the approved form, was accompanied by the prescribed fee and included a written certification stating whether the applicant had engaged in conduct in relation to the nomination that contravenes s.245AR(1). The requirements of r.5.19(2) and consequently of r.5.19(3)(a)(i) are met.

16. Regulation 5.19(3)(a)(ii) requires that the application for approval identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in cl.457.223(4) of Schedule 2 to the Regulations. The person identified in the application is the nominee Devinder Singh. Department records reveal that the nominee was granted a Subclass 457 visa on 10 December 2012, which was valid until 10 December 2016. Accordingly, the nominee held the required subclass of visa on the date of the application, 2 September 2016. The Tribunal is satisfied that the requirements of r.5.19(3)(a)(ii) are met.

17. Regulation 5.19(3)(a)(iii) requires that the application identifies an occupation, in relation to the position, that is listed in ANZSCO and has the same 4-digit occupation unit code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa. The application identifies both the position and occupation (ANZSCO) as Customer Service Manager. The Tribunal finds that ANZSCO lists the Occupation of Customer Service Officer, ANZSCO Code 149212, unit group code 1492. Evidence provided by the applicant in the form of Letters of Engagement, Position Description, Organisational Chart and payslips establish that the nominee is carrying on the occupation of Customer Service Manager. Accordingly, the Tribunal is satisfied that the requirements of r.5.19(3)(a)(iii) are met.

18. Given the above findings that the requirements in r.5.19(3)(a)(i),(ii) and (iii) are met, the Tribunal finds r.5.19(3)(a) is met.

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

19. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

    The applicant is or was the standard business sponsor who last identified the nominee in a nomination – r.5.19(3)(b)(i)

20. The Department's records confirm the applicant was approved as a Standard Business Sponsor from 9 October 2012 for three years and was the standard business sponsor who last identified the nominee in a nomination under s.140GB of the Act. Regulation 5.19(3)(b)(i) is therefore met.

    The applicant is actively and lawfully operating a business in Australia – r.5.19(3)(b)(ii)

21. This regulation requires that the applicant is actively and lawfully operating a business in Australia. The applicant produced various documents to the Tribunal including a current taxation return, Activity Statements and financial statements. Mr Scobie gave evidence of the business activities of the applicant, based in Brisbane and supplying customers in the south-east Queensland region. The applicant’s financial statements for the 2018 financial year (with comparative figures for the 2017 year) and the Profit and Loss Statement for the months of July and August 2019 show that the applicant had trading turnover for those periods as follows:

Period	Turnover
2017 financial year	$1,816,953
2018 financial year	$1,775,905
July/August 2019	$  312,811

1. Having regard to the evidence presented to the Tribunal, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, namely a food manufacturing business. The requirement in r.5.19(3)(b)(ii) is therefore met.

   The applicant did not, as a standard business sponsor, meet r.1.20DA, or r.2.59(h) or r.2.68(i), in the most recent approval as a standard business sponsor – r.5.19(3)(b)(iii)

2. Department records confirm that the applicant was not granted its most recent standard business sponsorship on the basis of meeting r.1.20DA, r.2.59(h) or r.2.68(i) of the Regulations. Accordingly, the requirement in r.5.19(3)(b)(iii) is met.

3. Given the above findings that the requirements in r.5.19(3)(b)(i),(ii) and (iii) are met, the Tribunal finds r.5.19(3)(b) is met.

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

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

   ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least two of the three years preceding the nomination application (r.5.19(3)(c)(i)); 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 two years in the three years immediately before the application (r.5.19(3)(c)(ii)).

5. The Letter of Engagement dated 1 September 2016 (which is expressed to be a variation to Contract dated 1 November 2012) indicates that the nominee commenced employment with the applicant, as the holder of a Subclass 457 visa, on 10 December 2012. As previously noted the nominee was granted a Subclass 457 visa from 10 December 2012 to 10 December 2016.

6. The applicant has provided pay records for the nominee for periods immediately preceding the date of the nomination application. The Letter of Engagement dated 1 September 2016 refers to the nominee’s ‘continued employment’ in the nominated position. Both Mr Scobie and the nominee gave evidence that the nominee was employed full-time by the applicant from the commencement of his employment until the year 2018. This was for the whole period of three years preceding the nomination application on 2 September 2016. The evidence of Mr Scobie and the nominee on this point was credible and consistent.

7. The Tribunal is accordingly satisfied that the nominee has been employed full-time in Australia in the position for which he held a Subclass 457 visa for at least two of the three years immediately before the nomination application on 2 September 2016. Accordingly, the requirement in r.5.19(3)(c)(i) is met.

8. Given the above findings, r.5.19(3)(c) is met.

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

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

10. The nominee is a person to whom r.5.19(3)(c)(i) applies (see paragraph 25 above) and is therefore required to meet this requirement.

11. The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the Letter of Engagement dated 1 September 2016  and the current Letter of Engagement dated 1 August 2019. The Tribunal is satisfied that the current contract provides that the nominee’s employment be for a minimum of two years and that the contract does not expressly preclude the possibility of an extension to that employment term. The Letter of Engagement and pay records provided for the nominee indicate that he has been and will in the future be employed by the applicant on a full-time basis.

12. The Tribunal also considered whether the applicant has the financial capacity to pay the full-time salary for the nominated position for at least two years. The documents before the Tribunal show that the applicant has operated its business since 2012. The Profit and Loss statements of the applicant show that the applicant had trading turnover in the 2017 and 2018 financial years, and for the months of July and August 2019 in the amounts set out in paragraph 21 above. The net profits before tax in those periods were as follows:

    Financial year 2017  $40,973

    Financial year 2018  $147,601

    July/August 2019  $31,711

13. The 2018 Profit and Loss statement is supported by a signed tax return.

14. Evidence was presented to the Tribunal that the nominee was employed by the applicant on a full-time basis in the nominated position from 2012 until 2018, and since then on a casual basis. The nominee was employed on a full-time basis as at the date of hearing. Accordingly, his salary has been paid by the applicant during the periods referred to in the financial statements.

15. On the basis of the evidence presented, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee in the position of Customer Service Manager for two years on a full-time basis in accordance with the  Letter of Engagement and that the nominee will be employed on a full-time basis in that position for at least two years.     

16. 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)

17. 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.

18. Mr Scobie gave evidence that the applicant has no Australian citizen or permanent resident working in the position of Customer Service Officer at the present time.

19. The current Letter of Engagement provides that the applicant will pay to the nominee a salary of $55,640.00 per annum, plus superannuation in accordance with the Superannuation Guarantee (Administration) Act. The nominee is entitled to leave in accordance with the relevant Award and the National Employment Standards.

20. The applicant produced to the Tribunal evidence in the form of copies of recent online job advertisements for the position of Customer Service Manager or related positions in the Brisbane area. A number of positions were advertised on the portal seek.com.au in the range of $40,000.00 per annum to $50,000.00 per annum. One position was advertised on au.indeed.com in the range of $48,000.00 to $55,000.00.

21. Based on the evidence available, the Tribunal is satisfied that the terms of employment applicable to the nominee are no less favourable than the terms and conditions which would be provided to an Australian citizen or Australian permanent resident for performing such work in that workplace at that location.

22. Accordingly, r.5.19(3)(e) is met.

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

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

24. In relation to the Subclass 457 scheme, a person who was a standard business sponsor of at least one primary sponsored person was required to comply with requirements relating to training of Australian workers in each year they engaged a Subclass 457 visa holder.

25. The period of the applicant’s most recent sponsorship approval is from 9 October 2012 to 9 October 2015.

26. The training benchmarks and training requirements are specified in instrument IMMI 13/030. The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents as related to the purpose of the business. The training benchmarks for an established business are:

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

    (B)recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

27. The applicant produced to the Department invoices evidencing payments for external training of employees during the sponsorship period totalling only $3,047.58. These invoices related to a period from 7 August 2015 to 5 October 2015, which was towards the end of the sponsorship period. No evidence has been produced by the applicant of any other payments for external training during the sponsorship period. No evidence has been produced by the applicant of any payments to an industry training fund during the sponsorship period. The applicant has produced evidence of payment of external training expenditure outside of the sponsorship period to the extent of $16,895.06 in the 2015 financial year and $11,770.00 in the 2016 financial year.

28. It was submitted on behalf of the applicant to the Department as follows:

    Note to the assessing case officer. This client has had an enormous amount of growth since they purchased the business in May 2012. There were very few good account or record keeping within the business and they have had to re-vamp all of the processes of the business. The business has developed a lot of internal training processes however they did not have a formal documented process for each employee. This has been resolved by undertaking a Training Plan which will be formally implemented when the business moves into the new premises.

    The business has understood the training benchmark as part of their Sponsorship Obligations, however did not record all expenses under a separate line item under General Expenses. They have been able to produce evidence of exceeding the training benchmark with Training provided from April 2016 which exceeds the Training Benchmark B requirement.

1. At the hearing, Mr Scobie gave evidence of the training culture of the applicant. He said that training was ongoing and constant, and that this involved changing and adapting procedures every day. He said that it had been a policy of his company to employ staff who had little or no skills and train them up very quickly. He stated that employees were trained in food handling requirements generally (such as obtaining food handling certificates) and more specifically in the requirements of the business. Evidence was produced to the Tribunal of the employment by the applicant of employees under Employment Pathway Fund (EPF) Wage Subsidy Agreements. There is also evidence that these employees were Australian citizens or Australian permanent residents. Mr Scobie gave evidence that it was a requirement of these agreements that training was provided to these employees. Evidence was produced that the applicant paid an amount of $58,078 to Wage Subsidy Agreement employees in the 2014/2015 financial year and an amount of $91,535 in the 2015/2016 financial year. The applicant did not submit that the wages of these employees should count towards the training benchmark, but submitted that this expenditure indicated that the applicant had taken its training obligations seriously and had fulfilled its training commitments “in principle or in spirit”.

2. Mr Scobie gave evidence that it was a key role of the business’s Production Supervisor Ms Julie Smith to train employees of the business. He listed the areas of training undertaken by Ms Smith as follows:

   ·the obligations of food handlers under current legislation;

   ·the correct ways of food handling and storage;

   ·potential hygiene risks;

   ·correct methods of cleaning and sanitising;

   ·the standards of personal hygiene for food handlers;

   ·the risk of food-borne illness and how to prevent; and

   ·latest food trends.

3. Mr Scobie stated that 30% of Ms Smith’s time was devoted to the training of employees. Copies of her PAYG Payment Summaries for the financial years ending on 30 June 2013, 2014 , 2017 and subsequent years were produced to the Tribunal. Mr Scobie gave evidence that the applicant was unable to locate Ms Smith’s PAYG Payment Summaries for the 2015 and 2016 years, but stated that she had worked for the applicant in the same position in those years. He submitted that 30% of her salary should be considered as a training expense of the applicant.

4. The following table sets out the payroll expenditure, the Training Benchmark B amount (calculated by reference to financial years and not the actual annual periods of the relevant sponsorship approval), external training expenditure and 30% of the Production Supervisor’s salary for the 2013 to 2017 financial years:

Financial Year	Payroll	Benchmark B amount	External training expenditure	30% of salary
2012/2013	$723,223	$7,232	$16,101
2013/2014	$837,410	$8,374	$18,353
2014/2015	$1,019,152	$10,191	$18,353 (estimated)
2015/2016	$854,632	$8,546	$19,942	$18,353 (estimated)
2016/2017	$679,539	$6,795	$11,770	$14,587

1. The Instrument provides that expenditure that can count towards Benchmark B includes:

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

   (b)on-the-job training which is structured with a time-frame and a clearly identified increase in skills at each stage and demonstrating a number of outcomes.

2. The Instrument further provides that expenditure that cannot count towards the benchmark includes training that is delivered on-the-job, other than on-the job training which meets the requirements set out in paragraph 54(b) above.

3. If the salary of the Production Supervisor does not count towards the benchmark, it is obvious that the applicant failed to meet the benchmark in any year of the sponsorship period. There were payments to external providers of only $3,047.58 late in the third year of the sponsorship period. That period fell substantially in the 2012/2013 to 2014/2015 financial years. In those years, there were no payments to external providers, although the payments to external providers in each of the two following financial years amounted to approximately 200% of the amount required to meet the benchmark. If Ms Smith’s salary does count toward the benchmark, the applicant has clearly exceeded the benchmark expenditure in each year of the sponsorship period, and subsequently.

4. It is necessary for the Tribunal to determine whether 30% of the salary paid to Ms Smith counts toward the benchmark. The Tribunal takes into account the evidence of Mr Scobie of the training of employees by Ms Smith and that such training was a key part of her job. The terms of the Instrument set out in paragraphs 54 and 55 above do create some doubt in the mind of the Tribunal, but, based on all the evidence the Tribunal finds that 30% of the Production Supervisor’s salary does count towards the training benchmark. Evidence has been produced to the Tribunal that Ms Smith was employed by the applicant and provided training to the applicant’s Australian employees during each year of the relevant sponsorship period. Accordingly, the Tribunal finds that the applicant fulfilled its commitments relating to meeting its training requirements during each year of the sponsorship period and that the requirement in r.5.19(3)(f)(i)(A) is met.

5. The Tribunal notes that, if it had not been satisfied that any part of the Production Supervisor’s salary could count towards the benchmark, meaning that the applicant had not fulfilled its commitments, the Tribunal would have needed to consider r. 5.19(3)(f)(ii) to determine whether it was reasonable to disregard r.5.19(3)(f)(i). The Tribunal would have taken into account the evidence presented to the Tribunal of the applicant’s commitment towards training of employees, the payments to external providers after the expiry of the sponsorship period, the payments to EPF employees and the payment of salary to the Production Supervisor for training employees. Based on that evidence and the Department’s Policy (PAM 3) which states that “delegates should not apply regulation 5.19(3)(f)(ii) inflexibly but must always consider the merits of a particular case”, the Tribunal would have found that it was reasonable to disregard r.5.19(3)(f)(i).

6. The Department’s policy (PAM3) states that to satisfy r.5.19(3)(f)(i)(B), the nominator must not have been investigated by the Department and found non-compliant with the applicable obligations under Division 2.19. There is no evidence before the Tribunal to indicate that the applicant has been investigated or found to be non-compliant with the applicable obligations under Division 2.19 relating to the nominator's training requirements during the sponsorship period. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(f)(i)(B) is met.

7. Accordingly, as the requirements of both r.5.19(3)(f)(i)(A) and (B) are met, the Tribunal finds r.5.19(3)(f) is met.

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

8. 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 of the Regulations. 

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

10. Accordingly, r.5.19(3)(g) is met.

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

11. 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.

12. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relation laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

13. Accordingly, r.5.19(3)(h) is met.

14. 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

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

    Terrence Baxter
    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.