1507799 (Migration)

[2016] AATA 4701

1507799 (Migration) [2016] AATA 4701 (25 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Y.G HYOUNG & Y.S HYOUNG

CASE NUMBER:  1507799

DIBP REFERENCE(S):  BCC2015/770139

MEMBER:D. Dimitriadis

DATE:25 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 25 November 2016 at 11:14am

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 21 May 2015 to refuse to approve the applicants’ nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicants applied for approval on 10 March 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. These criteria are extracted in the attachment to this decision. For nomination 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 applicants did not satisfy s.140GBA.

4. The applicants were represented in relation to the review by their registered migration agent.

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 applicants applied for approval of the nomination of the occupation of Cook (ANZSCO Code 351411) in relation to the nominee, Jirawadee Rukbua.

7. The issue in the present case is whether the applicants meet 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 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 10 March 2015, the applicants stated that they did labour market testing on 31 October 2014, 14 November 2014, 5 December 2014 and 19 December 2014. The applicants stated that employment advertisements were placed on four occasions with Asia Pacific Advertising & Marketing Pty Ltd. The applicants stated: “Please refer to the attached advertisements and tax invoices.”

12. The delegate found that the applicants did not meet s.140GBA(3). The delegate stated that, in the nomination application, the applicants stated that they had undertaken labour market testing in relation to the nominated position but did not include evidence or information about the approved sponsors’ attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions.

13. At the time of lodging the application for review on 9 June 2015 the applicants provided a copy of the delegate’s decision record. 

14. On 25 September 2015 the Tribunal received an email from the representative who stated that a nomination application by the applicants had been approved. The representative provided a copy of the Notice of Decision dated 27 August 2015 from the Department of Immigration and Border Protection approving the nomination of the occupation of Cook in relation to the nominee, Jirawadee Rukbua.

15. On 26 August 2016 the Tribunal wrote to the applicants and invited them to provide information that demonstrates that the nomination was accompanied by evidence in relation to labour market testing. The Tribunal informed the applicants that this must have included: information of attempted recruitment and details of advertising, fees and expenses for that advertising for the position or similar positions. The Tribunal informed the applicants that it may have included other information such as the applicants’ participation in relevant job and career expositions, details of fees, expenses and results of recruitment attempts.

16. On 9 September 2016 the Tribunal received an email from the representative and a number of documents including advertisements and invoices.

17. As the applicants had already received approval of a nomination of the occupation of Cook in relation to the same nominee, Jirawadee Rukbua, the Tribunal wrote to the applicants on 6 October 2016 to ask if they wished to withdraw the application for review as there is already an approved nomination or do they wish to proceed with the application for review before the Tribunal.

18. The applicants did not respond to the Tribunal’s letter in writing and the Tribunal set the matter down for hearing.

19. On 18 October 2016 the Tribunal wrote to the applicants, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 25 November 2016. They were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice. Two SMS hearing reminders were sent to the applicants’ mobile phone number on 18 November 2016 and 24 November 2016. No response was received to the Tribunal’s hearing invitation and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear.  In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

20. The nominated occupation in this case is Cook (ANZSCO Code 351411). 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).

21. As the applicants do 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 Cook in the specified period of 12 months before the nomination application was made.

22. Although the applicants stated in the nomination application that they did labour market testing and they stated that they had attached advertisements and tax invoices, the Tribunal is not satisfied that they provided the relevant documents at time of application. The delegate stated in the decision record that the applicants did not include evidence or information about the approved sponsors’ attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions. The Tribunal is not satisfied that the nomination was accompanied by evidence in relation to labour market testing. 

23. Although the applicants have provided evidence (advertisements and invoices) to the Tribunal of labour market testing which was undertaken in the specified period of 12 months before the application was made, the Tribunal is not satisfied that this evidence accompanied the nomination application when it was lodged. The Tribunal is satisfied that no evidence in relation to labour market testing accompanied the nomination: s.140GBA(3)(b).

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

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

    DECISION

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

    D. Dimitriadis
    Member