1415714 (Migration)

[2015] AATA 3203

1415714 (Migration) [2015] AATA 3203 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Fuse Pty Ltd

CASE NUMBER:  1415714

DIBP REFERENCE(S):  BCC2014/2054542

MEMBER:Rania Skaros

DATE:23 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 23 July 2015 at 9:55am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by vpa delegate of the Minister for Immigration on 29 August 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 20 August 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10) of the Regulations.

4. On review the Tribunal received a number of supporting documents which are relevantly referred to further below.

5. The Director of the review applicant company, Mr Nick Tanner, appeared before the Tribunal on 25 May 2015 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

8. The issue in the present case is whether the applicant meets the criteria for approval of the nomination, in particular, the requirement in s.140GBA relating to labour market testing.

   Labour Market Testing

9. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

10. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period (12 months) as set out in IMMI 13/136. In addition:

    ·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

11. The evidence of labour market testing that must accompany the nomination relates to information of attempted recruitment, and includes details, fees and expenses of advertising for the position or similar positions, but may include other information such as the sponsor’s participation in relevant job and career expos, details of fees, expenses and results for recruitment attempts. A sponsor may also provide recent evidence about labour market trends, government support, or other evidence specified by the Minister. However, if this non-mandatory evidence and information is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.

12. In the nomination form it was indicated that labour market testing had been undertaken in relation to a previous nomination in respect of the nominee but under a different entity. At the hearing Mr Tanner explained that the nominee is already the holder of a 457 visa and the reason the nomination was lodged was to transfer the nominee’s employment from the previous entity to the business’ new entity which is an approved sponsor. The Tribunal explained to Mr Tanner that there were no exemptions from the relevant nomination requirements in the circumstances and that for the nomination before the Tribunal to be approved it has to meet all the relevant requirements for approval, including the requirement for labour market testing unless exemptions apply. The Tribunal discussed with Mr Tanner the exemptions provided for in s.140GBB-140GBC and he confirmed that none of them applied. Mr Tanner confirmed that the labour market testing undertaken as part of the previous nomination had occurred more than 12 months before the date of this nomination. The Tribunal explained to Mr Tanner that in the circumstances the sponsor company is required to fulfil the labour market testing conditions in the 12 months before the nomination application and that the nomination was required to be accompanied by the evidence specified in s.140GBA(5) and (6). Mr Tanner explained that they did not realise that this would be required with this nomination as it had been done in the previous nomination.

13. The Tribunal has considered the material before it and has had regard to the oral evidence provided at the hearing and makes the following findings.

14. The nominated occupation in this case is Graphic Pre-press Trades Worker. This not an occupation that is classified in the ANZSCO as Skill level 1 or Skill level 2.  Therefore an exemption does not apply under s.140GBC. Also, the nomination does not fall within the natural disaster exemption in s.140GBB and, having regard to the relevant instruments, the Tribunal is satisfied that requiring labour market testing would not be inconsistent with Australia’s international trade obligations: s.140GBA(1)(c).

15. As the sponsor does not fall within one of the exemptions, the nomination application was required to be accompanied by specific evidence in relation to labour market testing for the nominated position of Graphic Pre-press Trades Worker in the specified period of 12 months prior to the nomination take place. The evidence before the Tribunal indicates that labour market testing had not been undertaken in the specified period and no evidence had accompanied the nomination: (s.140GBA(3)(a), (3)(b), (4)).

16. Given the above, the Tribunal finds that the labour market testing requirements in s.140GBA are not met.

17. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to approve the nomination.

    Rania Skaros
    Member