1419053 (Migration)

1419053 (Migration) [2016] AATA 4216 (2 August 2016)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  SATZAS PTY LTD
CASE NUMBER:  1419053
DIBP REFERENCE(S):  BCC2014/2260573
MEMBER:Alison Mercer
DATE OF DECISION:  2 August 2016
DATE CORRIGENDUM
SIGNED:21 June 2017
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
Page 12 of the Decision Record, paragraph       79 is omitted as it comprises working notes from the draft decision which were inadvertently included in the final decision.

Alison Mercer
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Satzas Pty Ltd
CASE NUMBER:  1419053
DIBP REFERENCE(S):  BCC2014/2260573
MEMBER:Alison Mercer
DATE: 2 August 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 02 August 2016 at 3:40pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 November 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).
The applicant, Satzas Pty Ltd, applied for approval on 9 September 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. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f), which required the delegate to be satisfied that the nominated position of Painting Trades Worker was genuine. The delegate noted that the Department’s records indicated that the applicant business had already nominated 4 Painting Trades Worker within the last 12 months, and that the current nomination was the fifth one it had lodged. The delegate further noted that 3 visa holders had already been approved to date. He did not accept that, given the relatively small size and turnover of the applicant’s business, that it had a genuine need for the nominated position.
The Tribunal received a review application from the applicant on 20 November 2014. It was signed on behalf of the applicant by Mr Syed Naqvi, director, and was accompanied by a copy of the delegate’s decision and an authority by which a registered migration agent, Mr Giovanni Cristiano, was appointed as the applicant’s representative and authorised recipient for the purposes of correspondence.
The matter was constituted to a Tribunal Member on 15 April 2015. On 24 April 2015, the Tribunal sent a letter to the applicant via its agent pursuant to s.359(2) of the Act inviting it to provide information to the Tribunal by 8 May 2015. The Tribunal requested the applicant provide information that demonstrated that it met all the requirements of r.2.72 (not just the criterion in dispute that was the subject of the delegate’s decision). A copy of r.2.72 was provided for reference. On the same date, the Tribunal advised the applicant via its agent that an associated review application by the applicant’s nominee Ms Gurmit Kaur in relation to the Department’s decision to refuse to grant her a subclass 457 visa had been finalised by the Tribunal on 17 April 2015 on the basis that it did not have jurisdiction to review that matter (MRT Case No. 1419124).
On 8 May 2015, the Tribunal received an email from the applicant’s agent attaching a legal submission dated 8 May 2015, position description dated 13 February 2014, organisational chart for the business, International English Language Testing System (IELTS) test result form for the nominee dated 10 March 2012, evidence of a bridging visa A granted to her on 1 September 2014, employment contract dated 5 June 2014, and letter from the agent to the Department dated 5 April 2014 providing submissions and evidence in relation to equivalent terms and conditions of employment.
In his submission of 8 May 2015, the applicant’s agent asked for further time to submit an updated organisational chart and information about the location(s) where the work of the nominated position would be carried out. He stated that the Department had rejected the nomination because it was seen as the fifth nomination of a Painting Trades Worker by the applicant, but this was not in fact the case. He stated that the nominee was essentially being nominated for the second time, as her original subclass 457 visa was approved for an 8 month period, rather than a 48 month period. Although this was a ‘typo’, it could not be amended, and therefore the applicant had re-nominated her.
On 19 August 2015, the case was reconstituted to a new Tribunal Member as the previous Tribunal Member had become unavailable to complete the review. On 25 August 2015, the Tribunal wrote to the applicant via its agent advising of this and noting that the Presiding Member had information that the applicant’s company had been deregistered in December 2014. The applicant was asked to confirm whether it wished to proceed with its review application under the circumstances.
On 18 September 2015, the applicant’s agent advised by email that the applicant had paid a fee to the Australian Securities and Investments Commission (ASIC) to re-register the company (evidence of which was attached) and wished to proceed with the nomination review.
On 22 March 2016, the Tribunal wrote to Mr Naqvi of the applicant via his agent to invite him to attend a hearing on behalf of the applicant on 21 April 2016. The applicant and its agent were requested to provide any additional information or documents to the Tribunal by 14 April 2016.
On the same date, the Tribunal wrote to Mr Naqvi of the applicant via his agent pursuant to s.359A of the Act to advise that it had a legal duty to invite him to comment on or respond to information it considered, subject to his comments, would be the reason (or part of the reason) to affirm the decision under review. The Tribunal stated that the particulars of the information held by it were that the applicant’s approval as a Standard Business Sponsor (SBS) had ceased on 25 February 2016, according to the Department’s records. The Tribunal advised that this information was relevant to its review because, subject to Mr Naqvi’s comments, it indicated that the applicant was no longer an approved SBS. The Tribunal indicated that if it found this to be the case, then the applicant would not meet r.2.72(4) and this would be a reason to affirm the decision under review. The applicant was invited to comment on this information by 5 April 2016, and advised that if no comments were received by the due date, and an extension of time was not granted, then the applicant would lose its entitlement to a Tribunal hearing.
On 5 April 2016, the applicant’s agent provided an email response to the s.359A letter in which he stated that the expiry of the applicant’s SBS approval was acknowledged but that the applicant instructed a new SBS application would be lodged with the Department by 11 April 2016.
On behalf of the applicant, Mr Syed Naqvi appeared before the Tribunal on 21 April 2016 to give evidence and present arguments. His agent also attended the hearing.
At the hearing, Mr Naqvi confirmed that the company’s registration had lapsed by accident and that this had been rectified. It was registered with ASIC. In relation to a new application for approval as an SBS, Mr Naqvi said that on the advice of his agent, he had wanted to attend the hearing and understand whether or not the nomination case was hopeless before reapplying for the company to be approved as an SBS. The Tribunal indicated that unless the applicant was an approved SBS, the nomination application would fail. Mr Naqvi undertook to lodge a new SBS application as soon as possible as it had already been partially prepared and they simply needed to get some updated information from the accountant.
Mr Naqvi told the Tribunal that his wife originally established the business in 2012, and it does interior painting and decorating, as she is an interior designer by profession. He manages and runs it. They work on existing and new properties. Mostly they used subcontractors initially but they found that there were problems with continuity of availability and reliability with subcontractors. Sometimes people did one day of a job then simply did not show up for the rest of the job. Mr Naqvi said that the company had originally sponsored 3 employees as Painting Trades Workers for subclass 457 visas, including the nominee, and that they were pleased with their work as they found that the subclass 457 visa holders were reliable and hard working and loyal to the company. All 3 employees were supposed to get 4 year visas but due to an administrative error, the Department granted the nominee a subclass 457 visa for 8 months, and not 48 months (as for the other subclass 457 visa holders working for the company). Therefore, the current nomination application was not for an additional employee, but simply a means to lodge a new subclass 457 visa application for the nominee which would mean she had the same term as the other subclass 457 holders working for the company.
In relation to the company’s current operations, Mr Naqvi told the Tribunal the business had grown substantially and now had regular work from Spotless Ltd and Associated Projects, which built new outlets for businesses such as KFC, McDonalds and Bunnings. Another client was a nursing home operator, where the applicant had the contract to freshen up and repaint units for new residents. There were 4 nursing homes with 80 to 90 units. He estimated that the applicant’s current turnover at $800,000 per year, which was a substantial increase on the turnover of around $350,000 that it had at the time it lodged the application for approval of the nomination. The company now had 8 painters: 3 were permanent residents, 3 held subclass 457 visas and 2 were New Zealand citizens. This did not include the nominee as she had returned overseas after the nomination was rejected and her visa ceased. He confirmed that the nominee’s position has not been filled and remained open for her return. Mr Naqvi acknowledged that many people could work as painters but he noted that skilled painting trades people were in short supply, as confirmed by the national and local skills shortage lists. Moreover, he emphasised the difficulty of getting and keeping good painters, as he noted that painters the company had employed had tried to undercut the company and set themselves up as independent contractors with the company’s clients.
In relation to the nominee, Mr Naqvi said that he had found her honest and sincere as an employee. She was a qualified painter and had about 2 years of work experience in the field overseas prior to formally obtaining qualifications in Australia. He had been happy with her work for the company. She had worked for the company for close to 12 months before she departed Australia. Mr Naqvi said he is in contact with her and she is ready and willing to return to Australia to resume employment if the nomination review is successful. In response to the Tribunal’s query, Mr Naqvi said that 2 out of his 8 painters started recently and it remained to be seen how long they would stay. He said that the company employs 3 women painters, who mainly worked doing the painting work in aged care facilities and residential homes. Mr Naqvi said that he and customers were happy with female painters, as they tended to have more ‘soft skills’ in dealing with customers, and paid attention to detail and instructions and cleaned up after they finished the job.
Mr Naqvi stated that his company does not underpay its workers. He pays market rates to all the workers, whether subcontractors or employees. Generally, he favours giving work to the full time employees, and using subcontractors where necessary. If he uses a subcontractor, there is always an employee of the company with them on a job. Mr Naqvi confirmed that the nominee’s pay is $55,000 per year plus superannuation (it had increased from $51,000 originally). He confirmed that the company advertised for painters with this salary and fielded some inquiries. Some potential employees wanted more, while others would have taken the job for less. He said that from his knowledge of the industry, the hourly award rates varied from $19 to $45 depending on experience and skill. Mr Naqvi said in his experience, most painters asked for a particular daily rate, rather than an hourly or annual income. In response to the Tribunal’s query, he said that the Australian employees are paid about $1.80 less per hour than the nominee. In response to the Tribunal noting that if appeared that if the Australian employees were paid $25 per hour for a 38 hour per week, this appeared to be about $52,000 per year, which was lower than the Temporary Skilled Migration Income Threshold (TSMIT) of $53,900, Mr Naqvi said that he did not underpay his employees. He paid the market rate. The Australian employees were being paid as full time casuals with good conditions. The company did not underpay either local or overseas workers. He and the applicant’s agent undertook to provide additional information about the basis of payment of the nominee and the Australian employees after the hearing. Mr Naqvi emphasised that he worked with Fair Work Australia, WorkSafe and the unions and believed his rates of pay were fair.
Following the hearing, the Tribunal received additional material from the applicant’s agent on 5 and 6 May 2016, being:
·     acknowledgement letter dated 5 May 2016 from the Department to the applicant for lodgment of a new application for approval as a standard business sponsor;
·     draft financial statements for the applicant for 2014/15 indicating that income had increased from $236,017 the previous financial year to $617,526 for 2014/15;
·     the applicant’s business bank account statements for the period 25 November 2015 to 25 February 2016;
·     payslips from the applicant to 2 of its painters (other than the nominee Ms Gurmeet Kaur) showing the annual salary of one as $51,500 (payslips issued 28 April 2015, 28 May 2015 and 28 June 2015) and the salary of the other as $54,000 (payslips issued 28 October 2014, 28 June 2015 and 28 November 2015);
·     submission on equivalent terms and conditions of employment, in which the applicant’s agent reiterated that the applicant arrived at the nominee’s salary of $55,000 per year after undertaking market research using 4 sources of information (namely, SEEK.com.au, MyCareer.com.au, JobOutlook.gov.au and Payscale.com.au), which had been provided to both the Department and Tribunal. The agent noted Mr Naqvi’s evidence at hearing that there was a slight difference between the nominee’s salary and the rates paid to some locals (that is, subcontractors earning a flat rate, in some instances, without including benefits of around $25.84 per hour and that full time staff (including those on subclass 457 visas) would be earning $54,000 to $55,000 per year, equivalent to $27.32 or $27.83 per hour. The agent acknowledged that the difference in pay rates could be construed as not being equivalent terms and conditions; however, Mr Naqvi was able to point out that a subcontractor would also earn extra income for a variety of reasons, such as travel allowances, parking allowances and so on. The agent submitted that when the extra monetary entitlements that a subcontractor earns were factored in to the equation, the final annual salaries were effectively equivalent. The dollar difference at a base level rate was roughly $2 per hour. Mr Naqvi indicated that in some instances, a subcontractor would earn in excess of $50 travel per day; generally speaking, however, they mostly averaged around $150 - $200 per week on top of their base salary of $982 per week ($25.84 x 38 hours). This would equate to $1131 per week, multiplied by 52 giving an annual salary of $58,859. The agent submitted that a subcontractor also needed to allow for superannuation and holiday leave etc, so the difference between an annual salary of (say) $55,000 as a subclass 457 holder and $58,895 as a subcontractor was comparable, relatively speaking. Mr Naqvi had provided payslips of subcontractors (with various hourly rates) which highlighted the extra entitlements that they were entitled to and it was submitted that there was little doubt that the salary of a subclass 457 visa holder and a subcontractor (even one on $25 per hour, for example) with entitlement would be very similar over the course of a year.
On 28 July 2016, the Tribunal received a further email from the applicant’s agent, attaching correspondence received by the applicant from the Department on 28 July 2016, approving the applicant as a standard business sponsor for a period of 5 years.
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
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. 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).
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
From the material on the Department’s file, the Tribunal is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) provided the ANZSCO code for that occupation and the location at which the position is based, has identified as the nominee Gurmit Kaur, and applied using the approved form and paid the required fee.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
At the time of the Tribunal hearing, the applicant’s original approval as a standard business sponsor had ceased. However, the applicant subsequently applied again for approval as a standard business sponsor, and this was approved by the Department on 28 July 2016 for a 5 year term.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
The Tribunal is satisfied from the material on the Department’s file that the applicant identified in its nomination the proposed applicant for the visa, to work in the nominated occupation, as Gurmit Kaur.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(5) are met.
Requirements for existing subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).

The Department’s records indicate that the nominee previously held a subclass 457 visa, granted to her on 9 December 2013 and which ceased on 9 July 2014. At the time that the nomination application was made and as at the time of the Tribunal’s decision, the nominee has held and continues to hold a bridging visa.
As the nominee is not the holder of a subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
For these reasons, the Tribunal finds that the requirements of r.2.72(10)(g) are met.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant written instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
From the material provided to the Department and Tribunal, the Tribunal is satisfied that the nomination included a 6 digit ANZSCO code (332211) for the nominated occupation of Painting Trades Worker, and that the applicant specified that the nominated occupation would be carried out in a specified suburb in Melbourne, the address and postcode of which was provided.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to Immigration about the applicant, or any person associated with it.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 15/092. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
Based on the nomination application form, the Tribunal is satisfied that the nominated occupation of Painting Trades Worker and its 6 digit ANZSCO code correspond to an occupation and 6 digit code in IMMI 15/092 (Painting Trades Worker 332211), and that there is no requirement in this case for the nomination to be supported by a specified organisation.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met and that the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009. This last requirement does not apply in the present case as the nomination was made on 9 September 2014.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 (currently $250,000): r.2.72(10)(AB). This is not the situation in the present case.
Taking into account the documentary evidence and the oral evidence of Mr Naqvi at hearing, the Tribunal is satisfied that there are equivalent Australian employees in the applicant’s business, and that those who are paid as employees (as opposed to those paid as subcontractors) have the same terms and conditions as those offered to the nominee. The Tribunal is therefore satisfied that the nominee’s terms and conditions, including her earnings, are no less favourable than those for the relevant Australian equivalent employee. Moreover, the Tribunal finds that there is no substantial contrary evidence before it that the nominee’s set is not less favourable than the Australian equivalent’s set.
For these reasons, the Tribunal finds that the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,900).
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
The Tribunal is satisfied from Mr Naqvi’s evidence that the nominee’s annual earnings will be $55,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc).
As noted above, Mr Naqvi, on behalf of the applicant, has provided evidence that some Australian employees are paid $54,000 per year as a base rate of pay (which exceeds the current TSMIT), while some others – who are paid as subcontractors – receive a slightly lower hourly rate that means that their annual base rate of pay is closer to $51,500 or $52,000, both of which are less than the current TSMIT.
The Tribunal has had regard to the submissions and evidence provided by Mr Naqvi and his agent on this issue, and it is satisfied that the subcontractors employed by the applicant business would generally receive additional entitlements or allowances that would take their total annual earnings to at least the TSMIT and in many cases, a figure exceeding the TSMIT.
Under the circumstances, and in particular having regard to the credible evidence of Mr Naqvi regarding the fact that the business employs locals as employees as a preference but that the subcontractors it employs ultimately earn a similar amount to its employees, the Tribunal considers it reasonable in this case to disregard the requirement that the base rate of pay of all other employees is not greater than the TSMIT.
For these reasons, the Tribunal finds that the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 15/092;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 15/092.
From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
Accordingly, it is satisfied that the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The Tribunal notes the concerns expressed by the delegate that the applicant’s business did not appear to be able to justify the nomination of what appeared to be a fifth Painting Tradesperson role. However, the Tribunal accepts the evidence provided by Mr Naqvi that the nomination was not for an additional Painting Tradesperson but merely to extend the subclass 457 visa of an existing nominee, Ms Kaur, who had inadvertently been granted a shorter subclass 457 visa than other nominated employees approved for subclass 457 visas at the same time.
Moreover, the Tribunal is satisfied from the documentary and oral evidence provided to it, that, subsequent to the delegate’s decision, the business operated by the applicant has expanded its operations and turnover, and that it still wishes the original nominee to resume her role as a Painting Tradesperson.
On the material before it, the Tribunal is satisfied that the position associated with the nominated occupation is genuine.
For these reasons, the Tribunal finds that the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a written instrument. Currently, no occupations have been specified in a written instrument.
The Tribunal is satisfied that the applicant provided a contract of employment for the nominee (being a letter of engagement dated 5 June 2014 setting out the nominee’s terms and conditions of employment) to the Department. At hearing, Mr Naqvi confirmed that this remained current.
For these reasons, the Tribunal finds that the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
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.
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 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.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence 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.
The Tribunal is satisfied that the nominated occupation is not specified as exempt from labour market testing under IMMI 13/137, which lists the relevant skill and occupational exemptions. Nor is it listed in IMMI 15/149, which specifies only various positions falling under the China-Australia Free Trade Agreement.
Accordingly, the Tribunal finds that the applicant is required to demonstrate that it had undertaken labour market testing.
The relevant written instrument is IMMI 13/136, which provides that labour market testing must be undertaken within 12 months of the nomination being lodged.
From the material before it, the Tribunal is satisfied that the applicant provided evidence to the Department with the nomination application made on 9 September 2014 indicating that it had advertised for 2 Painters on the Gumtree website in November 2013, and also provided evidence of the applicant’s assessment of various sources (such as Seek.com) in order to establish the market rate offered to its employees. The Tribunal is satisfied that the occupation of Painting Tradesperson is on the current Skills Shortage List for Victoria (published in February 2016 by the Department of Employment).
NEED ORIGINAL NOM APPLICATION TO SEE WHAT EVIDENCE WAS PROVIDED, AND SPEAK TO LEGAL RE: TIME FRAME ON REVIEW FOR LMT IF IT IS REQUIRED (IMMI 13/136…?)
For these reasons, the Tribunal is satisfied that the labour market testing requirements in s.140GBA are met.
For the reasons given above, the Tribunal is satisfied that the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alison Mercer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2016] AATA 4216

2 August 2016

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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Natural Justice

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