THE TRUSTEE FOR THE GILL FAMILY TRUST (Migration)

[2020] AATA 103

THE TRUSTEE FOR THE GILL FAMILY TRUST (Migration) [2020] AATA 103 (18 January 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  THE TRUSTEE FOR THE GILL FAMILY TRUST

CASE NUMBER:  1731018

DIBP REFERENCE(S):  BCC2017/898790

MEMBER:Susan Reece Jones

DATE OF DECISION:  18 January 2020

DATE CORRIGENDUM

SIGNED:1 February 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The date “18 January 2019” on the first page of the decision record should be replaced with “18 January 2020”.

Susan Reece Jones
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THE TRUSTEE FOR THE GILL FAMILY TRUST

CASE NUMBER:  1731018

DIBP REFERENCE(S):  BCC2017/898790

MEMBER:S. Jones

DATE:18 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2020 at 3:19pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Cook – financial capacity to maintain employment – improvement in financial performance – terms and conditions of employment – training commitments and obligations – 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 Immigration on 17 November 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 7 March 2017. The requirements for the approval of the nomination of a position (Cook, ANZSCO code 351411) 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, the GILL FAMILY TRUST (Mr Satnam Singh Gill being the trustee), 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) (d) of the Regulations which required that the applicant has the financial capacity to provide permanent, full time employment to the nominee for at least two years. The delegate’s decision specifically noted that the applicant had not provided any supporting documents or verifiable evidence to:

(a)confirm the terms and conditions of the proposed employment of the nominee; or

(b)support the requirement that the business has the financial capacity to provide a permanent, full-time position to the nominee for at least two years.

5.    The Tribunal received a review application on 8 December 2017, which was lodged online by the applicant’s agent, Mr Tanveer Singh of Vision Overseas Pty Ltd.

6.    The applicant operates a restaurant known as Spicy Byte Restaurant and Café in Ardeer, Melbourne, Victoria.

7.    On 13 September 2019, the applicant’s agent  in response to the Tribunal’s request for further information pursuant to s.359(2), provided the following documents to the Tribunal:

·     Position description of nominee

·     Business Activity Statements  2016,  2017, 2018, 2019

·     Financial statements 2015, 2016, 2017

·     Letter from Mr Gill

·     Employment Agreement dated  6 March 2017

·     PAYG Statements of nominee 2015, 2016

·     ATO Notices of amended assessment for nominee dated 2015 and 2016

·     Lease Agreement for site in Ardeer where the restaurant is located (expired) 

·     Business Name Registration  

·     ABN Registration

·     Trust Deed

·     Evidence of labour market testing

·     Smarter Business Training, Training Plan dated 2014

·     Training Benchmark submissions including statement re payments to Bond University

8.    On 18 October 2019, the Tribunal received further information from the applicant’s agent including:

·    NAB Bank Statements of the nominee 2015, 2016, 2017, 2018, 2019

9.    On 1 November 2019, the applicant submitted further information to the Tribunal including the following:

• CBA Bank, Business Transaction Account

• Up to date Organisation Chart

• Bank Statement showing payments to Bond University for Training Benchmark obligations

• Current Business name registration

• Nominee Superannuation statement 

• PAYG Summaries for 2019 for all Employees of the restaurant

1. Mr Gill, as trustee of the applicant, was invited to attend a hearing on behalf of the applicant but did not appear before the Tribunal on 25 October 2019 to give evidence and present arguments. The applicant  was instead represented by Ms Kuldeep Kaur Bal. The Tribunal was informed at the hearing that Ms Kaur Bal is a cousin of Mr Gill and shares in the profit of the business that the applicant operates and, as manager of the applicant’s business, has authority to represent the applicant at the hearing.

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

3. 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.

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

3. 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.

2. The Department’s records indicate that the GILL FAMILY TRUST was approved as a standard business sponsor from 9 May 2016 to 9 May 2021. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mrs Gursangeet Kaur, and nominated her 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.

3. Given the above, 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 has reviewed the occupations specified in IMMI 13/067 for the purposes of the second dot point above, and is satisfied that the nominated occupation of Cook is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.

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

   • the nomination was made on 7 March 2017 for the position of Cook;
   • the relevant 3 year period is therefore 6 March 2014 to 6 March 2017;
   • the nominee was initially employed by the applicant on or around 12 February 2015;
   • the nominee was a student and then applied for a subclass 457 visa on 5 February 2015, on the basis of her nomination by the applicant as Cook, and was granted a bridging visa A on that date;
   • she had therefore worked for the applicant in the nominated position for approximately 2 years prior to the nomination, and for 3 years in the 3-year period immediately prior to the nomination application being lodged.

4. Accordingly, given the above, and the employment contract, tax returns and PAYG summary statements for the nominee provided, the Tribunal is satisfied that the requirement in r.5.19(3)(c) is met.

5. 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.

2. The Department in its decision refusing the nomination, provided a detailed analysis of the financial statements and material provided in the applicant’s nomination, finding as follows:   

   (a)  on the application form, the business stated it employs no Australian employees and three foreign employees;

   (b)  the gross payroll expenditure was stated as $67,628;

   (c)   a handwritten PAYG summary for the nominee for the financial year ended 30 June 2016, with gross payments being $53,900;

   (d)  it appeared unlikely that the other two staff members could be adequately remunerated from the remaining payroll expenditure;

   (e)  there was no evidence of superannuation payments on behalf of the nominee provided and hence, it appeared that the applicant was not meeting, or could not meet, its employee obligations;

   (f)    the BAS for the financial year ended 30 June 2017 did indicate increased

   profitability; however, the absence of bank statements which may have indicated salary and superannuation payments reinforced the delegate’s concerns that the applicant failed to demonstrate its financial status and that it has the financial capacity to meet all employment obligations in respect of employing the nominee for a period of at least the next two years;

   (g)  the applicant provided a copy of the lease for the business property for five years commencing 19 July 2013 (with permitted use as a take away retail shop for commercial activities). The Department noted that the lease also provides for a month-to-month tenancy.

3. At the hearing, the applicant advised the Tribunal that the financial performance and operation of the café/restaurant, Spicy Byte, had improved significantly since the original application to the Department. According to Ms Kaur Bal, this is in large part due to the cooking abilities of the nominee. She advised the Tribunal that the food prepared and cooked by the nominee at Spicy Byte is simple, homemade style Indian food. The business specifically targets Melbourne’s Indian taxi driver community. In addition, Ms Kaur Bal told the Tribunal that the applicant’s business sells Indian sweets and this has assisted considerably in the growth of the applicant’s business over the past three years.

4. The applicant also told the Tribunal that it now employs five employees, of which two are Australian. Three employees are full time and two are part time. An updated organisation chart was provided to the Tribunal by the applicant. 

5. In addition, the applicant provided PAYG payment summaries dated 15 August 2019 for each of the current employees and the total payroll for the applicant for the 2019 year, which is $126,685 and which correlates with the ATO lodged Business Activity Statements provided. 

   Business Activity Statements

Period	Sales $	Salary $
Jul to Sep 2015	44,158	18,443
Oct to Dec 2015	45,253	22,580
Total
Jan to Mar 2016	52,895	12,443
Apr to Jun 2016	57,961	8295
Jul to Sep 2016	67,993	24,881
Oct to Dec 2016	66,187	29,028
Total	245,036	74,647
Jan to Mar 2017	72,216	27,372
Apr to Jun 2017	72,765	31,518
Jul to Sep 2017	73,512	27,612
Oct to Dec 2017	94,750	32,214
Total	313,243	118,716
Jan to Mar 2018	99,540	27,612
Apr to Jun 2018	94,325	32,214
Jul to Sep 2018	79,512	29,235
Oct to Dec 2018	99,047	34,107
Total	372,424	123,168
Jan to Mar 2019	107,085	29,235
Apr to Jun 2019	100,674	34,107

Financial statements

2014	2015	2016	2017	2018	2019
Sales	155,012	172,551	182,061	253,783	329,206	351,206
Wages +Super	45,021	54,651	67,628	123,516	131,021	138,720
PBIT⃰	23,785	14,514	16,370	18,510	41,123	54,501

⃰Profit before interest and tax

1. In relation to the handwritten PAYG summaries for the nominee, the Tribunal has been provided with copies of ATO generated PAYG payment notices for 2015-2019. They state as follows:

2015*	2016	2017	2018	2019
PAYG Forms	53,900	53,918	53,918	54,002
ATO Notice of Assessment	32,118	53,108	53,348	52,994	53,139

1. Based on the documentary evidence provided which demonstrates that the applicant has been paying its employees, including the nominee, the agreed salaries, and that its gross profits have increased since the Department’s refusal, the Tribunal is satisfied that the applicant has the ongoing  financial capacity to employ the nominee and that the nominee will continue to be employed on a full-time basis for at least 2 years and that the terms and conditions of her employment do not expressly exclude the possibility of extending her period of employment

2. 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.

2. The applicant’s employment agreement is dated 6 March 2017. It provides that the nominee will be paid $53,900 per annum (plus 9.5% superannuation).

3. As no verifiable proof of payment to the nominee of either salary or superannuation had been provided either to the Department or to the Tribunal, at the hearing the Tribunal requested the applicant to provide such documentation.

4. Following the hearing, the applicant provided the Tribunal with confirmation that it operates a Business Transactions Account with Commonwealth Bank and the statement provided identifies that it has done so since 2014.

5. The applicant also provided a statement from its Commonwealth Bank Business Transactions Account showing a transaction history of regular fortnightly payments for salary of $1,685. The applicant provided the Tribunal with copies of the nominee’s Bank Statements from NAB for 2015, 2016, 2017, 2018 and 2019. These show regular payments of $1,683.80 fortnightly from a CBA account.

6. Payment to the nominee per the NAB Bank statements in the sum of $1,683.80 fortnightly amounts to $43,778.80 on an annualised basis. This correlates with the nominee’s employment agreement that provides that applicant will pay the nominee a gross salary of $53,900 per annum (plus 9.5% superannuation).

Nominee PAYG and ATO assessments

2015*	2016	2017	2018	2019
PAYG Forms	53,900	53,918	53,918	54,002
ATO Notice of Assessment	32,118	53,108	53,348	52,994	53,139
Superannuation payments required (9.5%)	3,051	5,045	5,068	5,034	5,130

*Nominee employed from 12 February 2015

1. In response to the Tribunal’s request, the applicant provided the nominee’s superannuation the statement. The CBA Netbank superannuation transaction history commenced 5 May 2016 and went up to 9 October 2019. It shows gross contributions of $20,023 since 2016. Notably, on 9 October 2019, there was a payment of $10,752.11 into the nominee’s account.  There is no proof as to who has made the contributions for the nominee.

2. Further, as the nominee was employed from February 2015, the Tribunal estimates that the superannuation payment for the nominee should be at least $23,328 to 30 June 2019. In the view of the Tribunal, the applicant has underpaid the superannuation owed to the nominee by the applicant.

3. On 16 December 2019, the Tribunal wrote to the applicant in accordance with  s359(2) and requested:

   (a)  clarification as to whom the applicant’s regular bank payment of $1,683.80 fortnightly (as set out in paragraph 36 above) is being made as no name is attributed to the depositor and nor does the BSB appear to be the bank account BSB of the applicant as noted above. Hence, the Tribunal has no verifiable proof that the applicant is actually paying the nominee; and

   (b)  the applicant’s response as to the payment of superannuation to the nominee as it appears to the Tribunal that the applicant has not been paying the nominee’s superannuation either regularly or in full (i.e. 9.5% of salary) as required by law. As the nominee was employed from February 2015, the Tribunal estimates that the superannuation payment for the nominee should be at least $23,328 to 30 June 2019. The Tribunal assessment is that the applicant has underpaid the superannuation of the nominee by at least $3,200 and possibly more.

4. In response to the Tribunal letter of 16 December 2019, the applicant provided further bank statements of the applicant and the nominee that show the regular payments to the nominee and also proof of an additional superannuation payment to the nominee’s superfund on 21 December 2019 in the sum of $3,200.

5. This satisfies the Tribunal’s queries as to whether the applicant has complied with its obligations. However, irrespective of whether the applicant is a small business, it is reminded that it is legally obligated to make the superannuation payments to its employees on a regular basis. Clearly, this has not occurred as evidenced when the applicant has made a large payment of $10,752.11 in late 2019 to the nominee’s super fund  to account for a number of years where the payment should have been made and again more recently on 21 December 2019, when the applicant paid an additional $3,200 into the nominee’s superfund. The Tribunal accepts the applicant has now complied with its obligations and that the nominee has been paid in accordance with the contractual arrangements with the applicant.    

6. 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 training requirements applicable for an established business with approval as a standard business sponsor in that period in the applicable period were 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 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.

1. 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 was most recently approved as a standard business sponsor on 9 May 2016 to 9 May 2021. As part of the sponsorship approval, the applicant undertook to meet training benchmark A, which required the applicant to contribute 2% of its payroll to an industry-training fund in each year of its approval as a standard business sponsor.

3. The Tribunal has reviewed the submissions and evidence provided by the Representative setting out the payments by the applicant since 2014. The Representative stated that the Training Benchmark A payments in 2017, 2018 and 2019 were to Sydney TAFE when in fact they were made to Bond University in Queensland.  The Tribunal notes that payments to institutions such as Bond University and Sydney TAFE are acceptable training expenditure as per IMMI 13/030.

4. The Tribunal’s assessment of the Training Benchmark payments and documentation provided by the applicant  is as follows:

2014	2015	2016	2017	2017	2018	2019
Financial year Training Benchmark $ obligation	$2084.50	$1505.00	$1352.57	$1180.61	$1289.69	$2620.42	$2774.40
Receipts documentation	1 March 2016 $1505	26 April 2016 $909 4 July 2017 4443.57	4 July 2017 $1180.61	Bond receipt dated 1 September 2019 $1289.69	Bond receipt dated  1 September 2019 $2620.42	Bond receipt dated 1 September 2019 $2774.40
Verification (credit card payment date submitted by applicant)	credit card payment  16 September 2019	credit card payment   dated 16 September 2019	credit card payment dated 16 September 2019

1. As payments were made to Bond University, the Tribunal wrote to the University’s Office of Engagement on 6 December 2019 to confirm the payments. On 9 December 2019, Ms Susan McCartie of Bond University’s Office of Engagement confirmed that the payments had been made as submitted by the applicant to the Tribunal.

2. Although the applicant has made the required contributions to Bond University, the payments for 2017, 2018 and 2019 were not made until quite recently. It is therefore not in dispute that the applicant has not fulfilled the commitments made relating to training and has not complied with its obligations relating to training. The applicant has conceded this and has requested the Tribunal to disregard the requirements of r.5.19(3)(f)(i).

3. In considering whether it is reasonable to disregard the requirements in r.5.19(f)(i), the Tribunal has had regard to the evidence received from the applicant at the hearing who advised that payments had been made although notably, they have been made recently.

4. The Tribunal accepts the evidence provided and accepts that the applicant is a small business and has made efforts, albeit delayed, to rectify the failures relating to the timing of the payments required under the Training Benchmark A obligations. The Tribunal gives weight to the fact that the required contributions have been made to Bond University and have been independently verified by that institution. In considering the evidence overall, the Tribunal considers it is reasonable in the circumstances of this case to disregard the requirements in r.5.19(f)(i).

5. 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 had regard to the Department’s file and electronic records, none of which indicate that there is information known to Immigration about the nominator, or an associated person, that is adverse.

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

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

4. 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.

S. 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

   (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.