1609758 (Migration)

[2016] AATA 4461

1609758 (Migration) [2016] AATA 4461 (30 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JIMBOBS MAIN CONSTRUCTION PTY LTD

CASE NUMBER:  1609758

DIBP REFERENCE(S):  BCC2016/1041588

MEMBER:Marten Kennedy

DATE:30 September 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 30 September 2016 at 10:47am

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 June 2016 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 10 March 2016. 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 nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

   Labour Market Testing

3. 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.

4. 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 of 12 months as set out in IMMI 13/168 . 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.

5. 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.

6. Accompanying the application in order to address the labour market testing requirements, the applicant provided evidence of placing an online advertisement with Gumtree on 19 December 2015.

7. At the hearing, I raised satisfaction of the labour market testing requirements as a new issue of concern to me, noting that the Department had refused to approve the nomination on different grounds.  I explained that in the circumstances of this case, which I shall elaborate on below, I would be unlikely to be satisfied that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position on the basis on one online advertisement and the nature of the occupation.  As I was conscious that this was in a sense a new issue, after discussing my concerns with Mr Flannigan, who represents the company, I gave the applicant and its registered migration agent an opportunity to provide written submissions on this issue after hearing.

8. In those submissions, which I received on 26 September 2016, it was acknowledged that the applicant was required to fulfil the labour market testing requirements.  It was submitted that the mandatory evidence was provided at the time the application was made.  It was submitted that the applicant had thus satisfied the requirements for nomination approval ‘on paper’.

9. Further information was provided regarding the responses to the advertisement that had been placed.  It is submitted that the advertisement generated responses from working holiday makers with labouring skills or no skills.  A number of respondents were identified.  It was elaborated the company required a particular landscaping skill of mixing hardscape with soft-scape.

10. At the hearing I had identified particular concerns with the circumstances before me as to whether I would be satisfied that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position.  I identified that the nomination and associated visa application was ‘self-sponsorship’, in the sense that Mr Flannigan is the director of the applicant, and also an associated visa applicant.  I understand members of Mr Flannigan’s family are also visa applicants relying on sponsorship by the applicant.  I explained that in these circumstances, it was difficult to accept that the applicant would entertain employing a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder in preference to Mr Flannigan and his family.

11. I also noted that the company had shifted its operations from Western Australia to Victoria, and the employment advertisements placed by the company were in relation to Western Australia.  I explained that in these circumstances, as the company now operated in Victoria, online advertisements placed in relation to Western Australia would be unlikely to demonstrate that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position (in Victoria).

12. I note Mr Flannigan understood my concerns in this regard, and this position has been restated in the written submissions.  Mr Flannigan points to sponsoring his son as an example of the company’s willingness to employ people other than himself.  It is also submitted that the company would always want to hire skilled staff as they are preferable to trainees.  I also note evidence provided to indicate Mr Flannigan has left business cards at supplier’s premises looking for workers.

13. I have considered the evidence accompanying the application carefully, and I have also taken into account the further submissions and supporting evidence provided after the hearing.  I am not however satisfied that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position.  I consider one online advertisement in relation to a region where the company is no longer operating insufficient to overcome the concerns I have as to labour market testing arising from the self-sponsorship of Mr Flannigan and his family.  I consider the evidence of leaving flyers and business cards at supplier’s premises similarly unpersuasive given the nature of my concerns in this regard.

14. I have confirmed through examination of applicable legislative instruments that the nomination is not exempt from the labour market testing obligations on the basis of major disaster, occupational or international trade obligation exemptions.  While I am satisfied that labour market  testing was undertaken within the specified period, I am not satisfied having regard to that information that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position (s.140GBA(3)(d)).

15. For these reasons, the labour market testing requirements in s.140GBA are not met and the application for approval of a nominated position must be refused.

    OTHER MATTERS

16. The Department refused to approve the nomination on the basis that he delegate was not satisfied that the position associated with the nominated occupation was genuine: r.2.72(10)(f) of the Regulations. In preparation for the hearing, the applicant provided cogent submissions and corroborating documentary evidence demonstrating that the company was successfully operating as a landscaping business in Victoria, apparently having identified a niche in the Australian market. At the hearing, Mr Flannigan explained further the activities of the company. It is clear that customers of the company are satisfied and the business has potential to succeed.

17. In these circumstances, notwithstanding that the nomination and associated visa application is an example of ‘self-sponsorship’ (which is not denied by Mr Flannigan) I do not wish to endorse the description of the position associated with the nominated occupation as ‘not genuine’.  I accept that the company performs landscaping services, and the position proposed for its director, Mr Flannigan, is genuinely that of a landscape gardener.  I accept the business is operating genuinely and legitimately, and in that sense accept that the position associated with the nominated occupation is genuine.

18. However, for the reasons expressed above in relation to labour market testing and the obligation to satisfy me that a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was not readily available to fill the nominated position, the application for approval of the nominated position must be refused.

    DECISION

    The Tribunal affirms the decision not to approve the nomination.

    Marten Kennedy
    Member