WHITES DENTAL LABORATORIES PTY LTD (Migration)

[2020] AATA 3909

WHITES DENTAL LABORATORIES PTY LTD (Migration) [2020] AATA 3909 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Whites Dental Laboratories Pty Ltd

CASE NUMBER:  1806980

HOME AFFAIRS REFERENCE(S):          BCC2017/3977224

MEMBER:Alison Mercer

DATE:21 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 September 2020 at 09:18am

CATCHWORDS

MIGRATION – nomination of position – financial capacity to provide full-time employment for at least two years – documentary evidence of past and current capacity – business operating for 19 years – COVID19 restrictions – nominee’s length of employment and contribution to business – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 359(2)

Migration Regulations 1994 (Cth), r 5.19(3)(d)(i)

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 24 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).

2. The applicant, Whites Dental Laboratories Pty Ltd, applied for approval on 27 October 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations, which requires that the applicant would provide at least 2 years full time employment to the nominee for the nominated position (in this case, Dental Technician). The delegate noted that the proposed salary for the nominated position was $60,000 per year (plus superannuation) but was not satisfied that the financial information provided by the applicant sufficiently demonstrated that it could pay this salary, in addition to the 3 other employees listed on the organisational chart for the applicant. The delegate therefore found that not all of the criteria in r.5.19(3) were met and the nomination thus could not be approved, as the applicant had not made any claims to any other stream apart from the TRT stream.

5. The Tribunal received a review application in relation to this decision on 15 March 2018. It was lodged on behalf of the applicant by its Managing Director, Mr Andrew Marinovic, and was accompanied by a copy of the delegate’s decision and an authority by which Mr Marinovic appointed a registered migration agent, Dr Joseph Tan Bong Ri, as the applicant’s representative and authorised recipient for correspondence. Also provided was a copy of the applicant’s financial reports for the 2016/17 financial year.

6. On 10 August 2020, the Tribunal wrote to Mr Marinovic, via the agent, to invite him pursuant to s.359(2) of the Act to provide current and updated information on behalf of the applicant to demonstrate that it met all of the r.5.19(3) criteria (not only the criterion in dispute identified by the delegate). The Tribunal provided a copy of r.5.19(3) for reference, as well as examples of the kind of information that would assist it to assess the applicant against the relevant criteria. The Tribunal requested that this information be provided by 24 August 2020.

7. On 24 August 2020, the Tribunal received the following information from the applicant’s agent:

   ·agent’s submissions dated 22 August 2020;

   ·Business Activity Statements (BAS) for the applicant from July 2018 to July 2020;

   ·payroll summary statement for the applicant’s employees for financial year 2019/2020;

   ·s.245 Certification form dated 24 October 2017, signed by Mr Marinovic on behalf of the applicant;

   ·applicant’s financial statements for financial years 2016/17, 2019/2020;

   ·organisational structure chart for the applicant;

   ·position description for the nominated position;

   ·employment contract between nominee and applicant, signed 20 August 2020;

   ·applicant’s company tax returns for 2018/19 and 2019/2020;

   ·letter of support for the nominated position and nominee from Mr Marinovic, dated 27 October 2017;

   ·PAYG summary statements and tax assessment notices for the nominee for the financial years 2014/15, 2015/16 and 2016/17; and

   ·various invoices for training, variously dated from 2013 to 2017.

8. On 18 September 2020, the Tribunal received a letter dated 17 September 2020 from Mr Marinovic (via the agent) providing information about the current and projected financial capacity of the applicant.

9. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

10. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

12. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

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

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

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

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

16. The Department’s records indicate that the applicant was approved as a standard business sponsor from 22   May 2012 to 22 May 2015.  The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Ms Jiyoung Lee, 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.

17. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided from 2016/17 to 2019/2020, recent BAS to July 2020, and the evidence of its current ABN and ASIC registrations that the applicant is actively and lawfully operating a business in Australia.

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

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

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

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

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

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

21. The relevant 3 year period in this case is 26 October 2014 to 26 October 2017, as the nomination application was made on 27 October 2017.

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

    ·the nomination was made on 27 October 2017 for the position of Dental Technician;

    ·the relevant 3 year period is therefore 26 October 2014 to 26 October 2017;

    ·the nominee previously held a subclass 485 Graduate Skilled temporary visa which was valid to 31 July 2014;

    ·the nominee applied for a subclass 457 visa on 26 July 2014 on the basis of her nomination and employment by the applicant as a Dental Technician, and was granted a bridging visa A on that date;

    ·she was granted a subclass 457 visa on 4 September 2014, which was valid until 4 September 2018; and

    ·she had therefore worked for the applicant in the nominated position for over 2 years in the 3 year period immediately prior to the nomination application being lodged.

23. Accordingly, given the above, as well as the employment contract, reference letter by Mr Marinovic for the nominee, nominee’s 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.

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

24. 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.

25. In relation to its future financial capacity, the Tribunal notes that the delegate was not satisfied that the applicant had demonstrated that it could continue to employ the nominee for a further 2 years on a full time basis. 

26. As noted above, the Tribunal is satisfied that the nominee has been employed by the applicant since mid 2014 continuously on a full time basis, based on the financial documentation provided (including PAYG summary statements for the nominee, and selection of her payslips and tax assessment notices).

27. Recently, the applicant has provided a letter dated 21 August 2020 from its accountant, who relevantly states as follows:

    We act as accountants and tax agent for the above mentioned business.

    We understand that the business is offering their nominee a full-time employment for at least further two years from the date of a permanent visa with an annual salary of $65,000.

    We have reviewed the financial position of the business and the business is a going concern and has the sufficient financial capacity to meet all employment obligations to provide the nominee with at least 2 years of full-time employment:

FY	Business turnover	Net profit after income tax	Total equity
2019/2020	$905,333	$181,600	$999,828
2018/2019	$1,032,082	$119,827	$818,227

We also confirm that the business has provided staff training as follows:

Period	Payroll	Training expenses
23/5/12 to 22/5/13	$276,289	$3,800
23/5/13 to 22/5/14	$309,347	$3,600
23/5/14 to 22/5/15	$374,855	$4,450
23/5/15 to 22/5/16	$324,004	$3,850
23/5/16 to 22/5/17	$307,233	$3,080

…

1. The applicant has provided documentary evidence of the nominee’s ongoing employment as a Dental Technician, including since the COVID19 pandemic restricted its operations in the first half of 2020. The applicant’s director, Mr Marinovic, specifically addressed this issue in his letter of 17 September 2020:

2. This and the evidence provided of the applicant’s payments to the nominee to date leads the Tribunal to give the benefit of the doubt and to be satisfied that the applicant company remains financially capable of continuing to employ the nominee in her full time position on a salary of $65,000 plus superannuation, for the next 2 years.

3. Given the above findings, the Tribunal is satisfied that the requirement in r.5.19(3)(d) is met.

   No less favourable terms and conditions of employment: r.5.19(3)(e)

4. 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.

5. The nominee’s most contract of employment for the nominated position is dated 27 October 2017 and provides that the nominee’s salary is $65,000 per year plus superannuation. 

6. The Tribunal accepts evidence provided by the agent and Mr Marinovic that there is at least 1 other Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee.  The most recent organisational chart provided to the Tribunal indicates that the applicant employs 4 Dental Technicians, 3 of whom are Australian citizens (the nominee, a temporary resident, is the fourth Dental Technician). The Tribunal therefore needs to be satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are provided to that Australian employee performing equivalent work in the same workplace at the same location.

7. The agent’s submissions on this criterion are as follows:

   The nominator offers the nominee an annual salary of $65,000 from the time of an EN- 186 visa grant, on the basis of its review of the relevant market salary rate. Relevantly, to arrive at a right market salary rate for the nominee's future employment, the nominator has considered the nominee's post-qualification extensive years of experience as an dental technician (for more than 8 years), performing demonstratively a high level of skill, and determined that her competency in work performance is equivalent to an Australian citizen dental technician, Mr Xin Hu, whose annual salary is $65,000 as shown in his recent payslips (f. 96-97). Accordingly, the nominator entered an employment agreement on that terms (f. 77-92).

   Please note that attached payroll employee summary (f. 93) states Mr Xin Hu's earnings for the year ended 30 June 2020 to be $41,000, whereas his payslips (f.96-97) states his annual salary to be $65,000,and that the discrepancy is explained by the fact that he took time off without pay due to his personal reasons, which has reduced his income.

   The approved market salary rate for the nominee's occupation at the time of her nomination approval in September 2014 was $54,000 per annum (f. 17), which was based on its survey of the then salary level that would be provided to an Australian worker performing equivalent work. Accordingly, the nominator entered an employment contract with the nominee on that terms and conditions as shown in its employment agreement, signed on 24 June 2014 (f. 98-101).

   Some 3 years later in October 2017 when the nominator lodged a nomination application for approval of an approved appointment under reg 5.19, the nominator determined the relevant market salary rate to be $60,000 on the basis of the Australian Bureau of Statistics' (ABS) Wage Price Index June 2017 which provided, inter alia, ''[t]he trend and seasonably adjusted indexes for Australia both rose 1.9% through the year to the June quarter 2017'' (f. 102-104). According, the nominator entered an employment contract with the nominee on that terms and conditions as shown in its employment agreement, signed by both parties on 25 October 2017 (f. 105-121).

   It is noteworthy that the nominator's determination of the relevant market salary rate for the nominated position up until October 2017 when the nominator lodged a permanent nomination with the Department was based on the fact that the nominee's work performance did not correspond to that of any Australian worker within the nominator's workplace. But the nominator has now determined that the nominee's work performance is equivalent to that of an Australian citizen dental technician, Mr Xin Hu, (as mentioned in 6 above). Therefore the salary of $65,000 provided to this Australian worker is the relevant market salary rate.

   As the nominator has entered an employment agreement with the nominee on the newly determined market salary rate, there is no doubt that it will apply when the visa granted. Therefore the terms and conditions of employment applicable to the nominated position will be no less favourable than the terms and conditions that are provided to an Australian citizen for performing equivalent work in the same workplace at the same location. As such, reg 5.19(3)(e) is considered met.

   …

8. The Tribunal has reviewed the employment terms and conditions provided for 1 of the Australian full time Dental Technician, Xin Hu and is satisfied that it contains the same terms and conditions (including salary of $65,000 plus superannuation) as the nominee’s contract of employment. 

9. In addition, the Tribunal has consulted a range of sources of information, including:

   ·the Payscale website (accessed 10 September 2020) indicates that a Dental Technician in Australia earns an average salary of $25.62 per hour (which annualises to approximately $50,625);

   ·the Australian government’s Job Outlook website (accessed 10 September 2020) states that it does not have an average salary figure available for Dental Technicians;

   ·advertisements for various full time Dental Technicians positions in all of Sydney listed on Seek.com.au as at 10 September 2020 where a salary range is given:

   oDental Technician, Parramatta, experienced Chrome Casting practitioner required, $60,000 to $79,999 (advertised 4 September 2020.

10. The Tribunal finds that the nominee’s salary is higher than the Payscale average earnings and is within the range listed in the Seek job advertisement cited above.  Accordingly, on balance, the Tribunal accepts that the nominee’s salary would be no less favourable than that which would be offered to an Australian employee for undertaking the same work in the same location.

11. The Tribunal is further satisfied that the most recent contract of employment dated 27 October 2017 for the nominee 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), as do the employment contracts of other employees of the applicant. 

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

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

13. 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.

14. The Tribunal notes that the applicant’s most recent approval as a standard business sponsor (which had ceased to in force at the time this nomination application was made on 27 October 2017) ran between 22 May 2012 and 22 May 2015.

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

2. 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

3. 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.

4. The applicant relied on its payment of training for its Australian employees to meet Training Benchmark B during the period 22 May 2012 to 22 May 2015. Evidence was provided of invoices issued to the applicant for various training courses.  For the relevant period, the Tribunal accepts from the financial documents provided by the applicant that the salary expenditure and payroll amounts were as follows:

Training Invoice Expenses	Year 1 (May 2012 to May 2013)	Year 2 (May 2013 to May 2014)	Year 3 (May 2014 to May 2015)
46.      $3,800 for '3 Day Orthodontic Course in Orthognathic model construction, theory of TMJ splints function and construction	$3,600 for 3 Day Orthodontic Course in the construction of appliances to maintain and regain space in preparation for implant placement	[A]    $3,600 for 3 Day Orthodontic Course in the construction of appliances to maintain and regain space in preparation for implant placement
$850 for onsite Dental Ceramic Course
Total Training Expenditure	$3,800	$3,600	$4,450
Payroll	$276,829	$309,347	$374,865
% of payroll	1.37%	1.16%	1.18%

1. Given this finding, the Tribunal is satisfied from the information set out in the table above that the applicant complied with its SBS training obligations in the relevant period it was an approved SBS by meeting the Training Benchmark B requirements in each of the relevant years.

2. Accordingly, the Tribunal finds that the requirement in r.5.19(3)(f) is met.

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

3. 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. 

4. 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.

5. Accordingly, the Tribunal finds that the requirements of r.5.19(4)(f) are met.

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

6. 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.

7. 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 New South Wales relating to workplace relations.

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

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

9. 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.

10. The Tribunal has had regard to the original submissions made by Mr Marinovic at the time that the nomination application was made on 27 October 2017 in a letter of the same date:

    I am the managing director of Whites Dental Laboratories which has been actively operating as a dental lab since 2001.

    It is my pleasure to provide this reference for Jiyoung Lee. I have known her for more than 5 years as she started to work with us in August 2012 as a dental technician, She has employed under a 457 visa with business sponsorship to date since July 2014.

    Her position as a dental technician requires her to undertake numerous duties requiring a high level of skill and proficiency. Her main role in the dental Laboratory consists of tasks involving the construction and repair of dental appliances. During her employment with us she has demonstrated professionalism in all her work and has in fact contributed to our business growing into one of the more reputable and highly recognised dental labs in Sydney. Her continuing service has become an absolute necessity arid she is an integral part of the laboratory. Our customer base has grown considerably since she started her employment here and she has enthusiastically taken on an increasingly technical and challenging workload with vigour. Her strong work ethic is an asset to the lab and has resulted in an increase to our customer base.

    She is one of 3 core dental technicians in our lab who are the key to the sustainability of the business. We are in need of her continuing service and she has committed to work full-time for our lab for at least 3 years from the date of a permanent visa.

    For these reasons I have no hesitation in sponsoring her for a permanent residency in Australia.

    …

11. Mr Marinovic has confirmed in his recent letter of 17 September 2020 that the nominee and the nominated position remain crucial to the applicant’s business.

12. The applicant’s agent has provided a comparative table which lists the Australian and New Zealand Standard Classification of Occupations (ANZSCO) duties for a Dental Technician with those listed for the nominated position, and the Tribunal is satisfied that they largely correspond with each other, and that the nominee has genuinely been carrying out these duties for the applicant for approximately 8 years.

13. Accordingly, the Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee, as a paid employee, to work in the position under the applicant’s direct control, and it finds that the requirement in r.5.19(3)(i) 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.

    Alison Mercer
    Member

    
    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.