1508969 (Migration)

[2016] AATA 4628

1508969 (Migration) [2016] AATA 4628 (8 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Auschain Investment Group Pty Ltd

CASE NUMBER:  1508969

DIBP REFERENCE(S):  BCC2015/1198810

MEMBER:D. Dimitriadis

DATE:8 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 November 2016 at 5:40pm

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 17 June 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 23 April 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 applicant did not satisfy s.140GBA.

4. The applicant was represented in relation to the review by its 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 applicant applied for approval of the nomination of the occupation of Real Estate Agent (ANZSCO Code 612114) in relation to the nominee, Shiyu Qu.

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 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 23 April 2015, the applicant stated that they undertook labour market testing in 2014. The applicant stated that the business has advertised the nominated position or similar positions recently. The applicant stated that they have advertised the position on social media continuously since September 2014 until now. The platforms included a few websites and Wechat. The applicant also stated that the advertisements had been continuously published on social media since September 2014 and they have interviewed quite a few candidates, but unfortunately none of them was suitable for the position. The applicant stated that, as mentioned, the position requires excellent level of communicative and interpersonal skills. Also excellent written and verbal skills in both English and Mandarin Chinese are “a must”. The applicant stated that after almost 8 months of searching, they still could not find any eligible candidate.

12. On 4 May 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 available 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 17 June 2015 the delegate refused the applicant’s application for approval of a nomination. The delegate found that the applicant did not meet s.140GBA. The delegate stated that, in the nomination application, the applicant stated that they have undertaken labour market testing in relation to the nominated occupation but did not include any evidence or information about the approved sponsor’s attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions.

14. At the time of lodging the application for review, the applicant provided a number of documents including copies of the following:

    ·The delegate’s decision record;

    ·Curriculum vitae and resumés;

    ·Online job advertisements by the applicant;

    ·Statement dated 12 May 2015 by Sean Xuanyuan Huang, director of the applicant;

    ·Statement dated 3 July 2015 by Sean Xuanyuan Huang, director of the applicant.

15. In the statement dated 12 May 2015, Mr Huang apologised for their carelessness in terms of the failure to provide evidence of labour market testing (LMT) at the time of lodgement. Mr Huang stated that they had not seen any specific indication when filling the LMT related part of the online application. Mr Huang referred to the question in the LMT section that an applicant is “required to provide evidence with this application in relation to the attempts” that the business has made to recruit suitably qualified and experienced Australian citizens or permanent residents to fill the position or other similar positions. The applicant stated that the term “with this application” was an ambiguity. There was no place for them to attach evidence of labour market testing with the application. the applicant stated that when the application had been completed and submitted, the evidence they should have provided would be evidence attached after the lodgement. The applicant stated that all the attempts were conducted and the advertisements were published before the application date.

16. On 7 October 2016 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide in writing information that demonstrates that the nomination was accompanied by evidence in relation to labour market testing.

17. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 21 October 2016, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

18. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit an applicant to appear: Hasran v MIAC [2010] FCAFC 40.

19. On 24 October 2016 the Tribunal received a telephone call from Mr Yi Bao who stated that he is the new representative for this case. On that day the Tribunal also received a signed appointment form and a letter from the applicant stating that they have changed their representative.

20. On 25 October 2016 the Tribunal received a letter from the newly appointed representative who stated that they expect to write to the Tribunal again late next week.

21. On 27 October 2016 the Tribunal wrote to the applicant and informed them that they did not respond to the Tribunal’s letter sent on 7 October 2016 pursuant to s.359 of the Act within the prescribed time limits and the applicant has thereby lost its entitlement to a hearing. The Tribunal informed the applicant that it will proceed to make a decision but will not make that decision before 4 November 2016 and any information provided before a decision is made will be taken into consideration.

22. On 4 November 2016 the Tribunal received a letter from the representative who stated that it appears that there was a delay in providing the LMT evidence and there was no extraordinary circumstance or reason surrounding that delay during the period between 23 April 2015 and 12 May 2015. The representatives stated that “this challenge” filed on 3 July 2015 was to question the legality of the statutory interpretation of s.140GBA(3)(b), and the clarity or fairness in relation to an earlier version of migration policy (PAM 3) the meaning of the word “accompanied” as at the time of the application on 23 April 2015.

23. The Tribunal has considered the evidence and the submissions and has decided to proceed to decision.

24. The nominated occupation in this case is Real Estate Agent (ANZSCO Code 612114). 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 Real Estate Agent in the specified period of 12 months before the nomination application was made.

26. Although the applicant stated in the application that they undertook labour market testing in 2014 and the business advertised the nominated position on social media continuously from September 2014 until the date of the application, the nomination was not accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing. Indeed the evidence specified in s.140GBA(5) and (6) relating to labour market testing was not provided around the same time the nomination application was lodged either. As stated above, 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.

27. There is no evidence relating to labour market testing on the Department’s file. The applicant provided evidence of online advertisements to the Tribunal when the application for review was lodged on 3 July 2015.  

28. The nomination application was lodged on 23 April 2015. The nomination was not accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing. As evidence related to labour market testing was not provided at the same time as the nomination application was lodged, the Tribunal is satisfied that no evidence in relation to labour market testing accompanied the nomination: s.140GBA(3)(b).

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

30. 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

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

    D. Dimitriadis
    Member