1503117 (Migration)

[2016] AATA 3910

1503117 (Migration) [2016] AATA 3910 (20 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Powerlinksolutions Pty Ltd ATF Powerlinksolutions Unit Trust

CASE NUMBER:  1503117

DIBP REFERENCE(S):  BCC2015/41234

MEMBER:Dione Dimitriadis

DATE:20 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2016 at 2:51pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 February 2015 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 6 January 2015. 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 s.140GBA.

4. The applicant appeared before the Tribunal on 20 May 2016 to give evidence and present arguments and was represented by a director, Mr Keith Michael Lambert.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant applied for approval of the nomination of the occupation of Electrician (General) (ANZSCO Code 341111) in relation to the nominee, Anthony Phipps.

7. 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).

   Labour Market Testing

8. 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.

9. 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 Legislative Instrument 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.

10. 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.

11. In the nomination application lodged on 6 January 2015, the applicant stated that they have not undertaken any labour market testing in relation to this nominated position of Electrician (General). 

12. On 5 February 2015 the Department wrote to the applicant and stated that standard business sponsors are required to test the local labour market prior to lodging a nomination unless exempt. The Department also informed the applicant that sponsors must provide information and attach evidence with their nomination application about their attempts to recruit Australian workers and how they have determined, on the basis of these attempts, that there is no suitably qualified and experienced Australian citizen, Australian permanent resident or eligible temporary visa holder to fill the position. The Department informed the applicant that evidence of having tested the Australian labour market within the twelve months prior to lodging the nomination must be provided at the time the applicant lodged the nomination and it is not possible to provide information and attach evidence relating to labour market testing after lodgement.

13. On 5 February 2015 Mr Keith Lambert of the applicant sent an email to the Department and stated that he believed that the documents attached to the email (of 5 February 2015) were attached to the nomination and he apologised, if for some reason, he did not attach them properly. The documents included a wages report; apprentices wages report; business activity statement covering the period 1 January 2014 to 31 March 2014; pay advices to employees other than the nominee; breakdown of the applicant’s pay structure; position description for electrician to work within HVAC industry with a statement that “adverts placed on seek.com”; offer of employment to an employee (not the nominee); “supplier analysis (full activity listing with notes)”; organisation chart; wages summary for payroll tax; and financial statements for the year ended 30 June 2013.  

14. The delegate found that the applicant did not meet c.140GBA. The delegate stated that, in the nomination application, the applicant stated that they have not undertaken any labour market testing in relation to the nominated position. The delegate stated that no evidence was provided at the time of lodgement.

15. At the time of lodging the application for review the applicant provided a number of documents including copies of the delegate’s decision record, organisation chart, apprentice costs breakdown and advertisement costs (detailed transaction listing) with invoices from 5 November 2014 to 18 February 2015.

16. In a letter dated 3 March 2015, Mr Lambert stated that he attached documentation to show that they try very hard to employ Australian workers before they consider sponsorship. He does not believe that he attached these documents correctly to the original nomination. They employ 16 qualified electricians, 8 unqualified electricians (most of whom are waiting for licences), 12 indentured apprentices, 1 trade assistant, 6 from a labour hire company and 3 other apprentices. The applicant places frequent advertisements in seek.com and “career one”. They spend approximately $375,000 per annum training apprentices.

17. At the hearing Mr Lambert stated that it was a mistake and he tried to undo what he did wrong in not providing the documents at the time the nomination application was lodged. He has no evidence that he tried to upload the documents in January 2015. He also has no evidence that he had difficulty uploading the documents in January 2015. He believes that most of the labour market testing evidence was triggered by the email he received from the Department in February 2015. Mr Lambert showed the Tribunal a record of the transactions relating to this nomination application with the Department. The document shows that there were 5 documents received for labour market testing and all the documents were received on 5 February 2015.

18. Mr Lambert stated that two nomination applications lodged by the applicant in March 2015 and April 2015 had been approved. 

19. The Tribunal informed the applicant that it appears that there were no exemptions from the relevant labour market testing requirements in this case and that for the nomination before the Tribunal to be approved, it has to meet the requirement for labour market testing unless exemptions apply.  

20. The Tribunal has had regard to the evidence of the applicant that the business has grown significantly in the last 6 years. Their workforce has increased and as well as employing a large number of electricians, they also employ 11 apprentices. They spend $370,000 per annum on apprentices and pay for them to go to TAFE once a week.

21. The applicant provided a breakdown of the apprentice costs to the company, a snapshot of electricians who have left the applicant in the past 2 years and a list of their current employees and their employment status.    

22. The Tribunal informed the applicant that it 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).

23. The Tribunal has considered the documentary evidence before it and the oral evidence provided at the hearing and makes the following findings.

24. The nominated occupation in this case is Electrician (General) (ANZSCO Code 341111). It is Skill level 3. This is not an occupation that is classified in 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. The Tribunal has had regard to the relevant Legislative Instruments and is satisfied that requiring labour market testing in relation to the nominated position would not be inconsistent with Australia’s international trade obligations: s.140GBA(1)(c).

25. As the applicant does not fall within one of the exemptions, the nomination application must have been accompanied by evidence in relation to labour market testing for the nominated position of Electrician (General) in the specified period of 12 months before the nomination application was made.

26. Although the applicant has stated that they tried to lodge the documents about labour market testing at time of application, the applicant stated in the nomination application that the business has not tested the Australian labour market to ensure that there are no suitably qualified and experienced Australian citizens or permanent residents readily available to fill the position or other similar position. As well, the record of transactions from the Department indicates that the documents provided by the applicant as evidence of labour market testing were provided on 5 February 2015. The Tribunal is not satisfied that the nomination was accompanied by evidence in relation to labour market testing. 

27. The only documentary evidence before the Tribunal, of labour market testing in the specified period of 12 months before the application was made, is a record of an invoice for advertising on 5 November 2014. This is referred to in the list of advertisement costs (Detailed transaction listing) (folio 6 of the Tribunal file). However, the Tribunal is not satisfied that this evidence accompanied the nomination when it was lodged. The Tribunal is satisfied that no evidence in relation to labour market testing accompanied the nomination: s.140GBA(3)(b).

28. For these reasons, the labour market testing requirements in s.140GBA are not met

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

    DECISION

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

    Dione Dimitriadis
    Senior Member