Adox Pty Ltd (Migration)

[2022] AATA 2945

Adox Pty Ltd (Migration) [2022] AATA 2945 (2 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Adox Pty Ltd

REPRESENTATIVE:  Mr Ray Turner (MARN: 0428182)

CASE NUMBER:  1829828

HOME AFFAIRS REFERENCE(S):          BCC2017/4614760

MEMBER:Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:         2 May 2022 at 12:45 pm (NSW time)

DATE OF WRITTEN RECORD:                20 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the nomination is approved.

Statement made on 20 May 2022 at 10:03am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Electronic Equipment Trades Worker – genuine position – genuine recruitment efforts – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 October 2018 (Department’s Decision) refusing to approve a nomination under s 140GB of the Migration Act 1958 (Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (Regulations)].

2. At the hearing on 2 May 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for approval on 5 December 2017. A nomination of an occupation for a subclass 457 visa is made under section 140GB of the Act and regulation 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.

4. These criteria are helpfully set out in the written submissions by Mr Turner to the Tribunal dated 22 April 2022 (Written Submissions).  For nomination applications made from 23 November 2013, additional criteria as specified in section 140GBA.

5. The delegate in this case decided not to approve the nomination on the basis that the delegate was not satisfied that there was sufficient information to demonstrate that the nominated occupation is genuine.

6. The applicant appeared at the hearing of the application for review of the Department’s Decision by its director and secretary, Mr Dehlsen, to give evidence and present arguments.  The applicant was assisted in relation to the review by his representative, Mr Turner.

7. As indicated, Mr Turner provided Written Submissions and assisted the Tribunal.

8. This application was heard with the application for review by the nominee against the decision refusing their applications for the subclass 457 visa made on 15 October 2018. The nominee, Mr Duplock, and his partner, the dependant visa applicant, Ms Herbert, appeared at the hearing.  Evidence on one application was evidence in the other.

9. The hearing was held during the COVID-19 pandemic.  The hearing was conducted by telephone.  The Tribunal exercised its discretion to hold the hearing by telephone, having regard to the time that has elapsed since the applicants applied for and were refused the nomination and visas respectively and the need for the applicants to have certainty in relation to their employment rights and visa status.

10. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not be conducted by telephone.  During the hearing, the Tribunal was satisfied the applicants heard and understood the outline given at the commencement of the hearing as to how the hearing would proceed and the questions asked during the hearing which were answered.

11. The Tribunal is satisfied the applicants were given a fair opportunity to give evidence and present arguments. 

12. 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

13. 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 applicant is an approved sponsor and meets the requirements of regulation 2.72: section 140GB(2).   

14. The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made after 12 August 2018.  In addition, for nominations made from 23 November 2013, section 140GBA must be met.

15. As indicated, the nomination for the temporary business entry visa was made on 5 December 2017.  In this statement of decision and reasons, I will refer to the applicant on the nomination for a temporary business entry visa as the applicant or sponsor and the primary nominee, Scott Duplock, as the nominee. 

16. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in Regulation 2.73.

17. Relevantly, Regulation 2.73(1A)(a) provides that the sponsor is nominating an occupation under section 140GB(1)(b).  The nomination for a temporary business entry visa was lodged with the Department on 5 December 2017 (Nomination) and nominates the nominee for the position of electronic equipment trades worker. I am therefore satisfied that this requirement has been met.

18. Regulation 2.73(1A)(b) requires that the sponsor identifies in the nomination a holder of, or an applicant or a proposed applicant for a subclass 457 visa as the person who will work in the occupation.  The Nomination identifies the nominee as the proposed applicant for a subclass 457 visa and as the person who will work in the nominated positions.  I am therefore satisfied that this requirement is met. 

19. Regulations 2.73(2), (3), (5) and (9) require that the nomination was made using the approved form and fee.  The Nomination is in evidence.  It is in the approved form.  It was accepted by the Department who acknowledged payment of the required fee.  During the hearing, Mr Dehlsen said that the required fee was paid upon lodgement of the Nomination.  Accordingly, this requirement has been satisfied. 

20. Regulation 2.73(4)/(4A) and regulation 2.72(5) requires that the sponsor has identified the nominee in the nomination.  As indicated, this requirement has been satisfied.

21. Regulation 2.73(4B) provides that for applications made from 14 December 2015, the sponsor has provided the certification as to whether the person has engaged in conduct that constitutes a contravention of section 245AR(1) of the Act.  The Nomination certifies that the applicant has not engaged in conduct in relation to the nomination that constitutes a contravention of subsection 245AR(1) of the Act.  Accordingly, this requirement is satisfied.

22. A further requirement is that the nomination includes the location at which the occupation will be carried out and the name and/or 6-digit ANZSCO code if the applicant is a standard business sponsor.  The applicant is a standard business sponsor and the Nomination includes the relevant ANZSCO code 342313 for the nominated occupation of electronic equipment trades worker. The Nomination provides that the address where the nominated person will be employed is in Botany.  This was the position at the time the Nomination was lodged.  Since then, Mr Dehlsen said that the sponsor has moved and its principal place of business is now at St Peters which will be the primary place of work of the nominee.  I am therefore satisfied that this requirement is met. 

23. Regulation 2.72(10) contains other requirements for where the sponsor is a standard business sponsor.  As indicated, in this case the sponsor is a standard business sponsor.  I will deal with the other relevant provisions of Regulation 2.72(10) later in this statement of reasons and decision.

24. Having regard to the above, I am satisfied that the relevant requirements of regulation 2.72(3) are met. 

25. Regulation 2.72(4) requires that a person making a nomination is either a standard business sponsor or a party to a work agreement under the Minister. The sponsor was approved by the Department of Home Affairs as a standard business sponsor on 10 May 2018.  That approval is valid until 10 May 2023.  Accordingly, I am satisfied that regulation 2.72(4), so far as it relates to the sponsor, is satisfied. 

26. 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. In the Nomination, the sponsor identifies the nominee as the person who will work in the nominated occupation of electronic equipment trades worker.  Accordingly, I am satisfied that Regulation 2.72(5) is met.

27. The criteria for an approval of a nomination contains several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. The Nomination does not identify the nominee as the holder of a subclass 457 visa.  The Nomination nominates the nominee for a 457 visa.  The nominee holds a working holiday (temporary) (class TZ) visa.  Accordingly, Regulation 2.72(6) (7) and (7A) do not apply.  Nor does Regulation 2.72(10)(g).

28. Regulation 2.72(8A) requires that the applicant (i.e., the sponsor) provide the following information as part of the nomination – the name of the occupation and the corresponding 6-digit ANZSCO code and the location(s) at which the nominated occupation is to be carried out.

29. As stated, the Nomination nominates the nominee for the nominated occupation of electronic equipment trades worker.  The 6-digit ANZSCO code specified in the Nomination is 342313.  The Nomination nominates Botany as the address where the nominee will be employed.  That was the position at the time the Nomination was lodged.  Since then, the sponsor has moved.  Its principal business address is now St Peters where Mr Dehlsen said the Nominee will be employed.  I am therefore satisfied that regulation 2.72(8A) has been satisfied.

30. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing, whether they have engaged in conduct in relation to the nomination that constitutes a contravention of section 245AR(1) of the Act.  As stated, the Nomination contains that certification and accordingly, this requirement has been satisfied.

31. 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 regulation 1.13A and 1.13B. 

32. I have reviewed the Department’s file for the applicant/sponsor, the nominee and the dependant nominee.  There is no record of any adverse information on the Department’s files.  The sponsor gave evidence that it was incorporated on 21 February 2011.  It provided a list of its current employees including the nominee. There are 14 current employees.  The sponsor provided a diagram showing the relationship between the employees and the chain of command headed by Mr Dehlsen.  The sponsor provided financial statements including BAS statements and payslips which record the sponsor is an established, prosperous and solvent company which employs 15 employees and meets all its liabilities including employer and tax liabilities. 

33. The nominee provided to the Department and the Tribunal, national police chief counsel certificate for immigration purposes (United Kingdom) for the nominee and Ms Herbert which contains no adverse information.

34. Having regard to the above evidence, I am satisfied that the requirement of regulation 2.72(9) are met. 

35. Regulation 2.72(10)(aa) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument and the occupation must be applicable to the person identified in the nomination in accordance with the instrument.  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: regulation 2.72(10)(B).

36. The nominated position is the position identified in ANZSCO code 342313 for electronic equipment trades worker.  The Nomination identifies that his responsibilities and tasks specified in ANZSCO code 342313 and the tasks to be performed and being performed by the nominee. 

37. The nominee has been employed by the sponsor since 2017.  The sponsor provided to the Tribunal a series of employment contracts for the nominee.  The current employment contract is dated 26 June 2020.  It describes the position of the nominee.  The nominee also provided to the Tribunal a position description of the nominated position.  The nominee has been fulfilling that position since in or about 2017.

38. Mr Turner provided to the Tribunal a copy ANZSCO extracted from the Australian Bureau of Statistics website.  The sponsor supports and makes the nomination.  I am satisfied Regulation 2.72(10)(AA) is satisfied.

39. Regulation 2.72(10)(c) requires that the terms and condition 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.

40. 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:  regulation 2.57(3A). “Earnings” is defined in regulation 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.

41. The relevant award is the Electrical, Electronic and Communications Contracting Award 2010.  That is the award relevant to the nominated position.  That specifies an hourly rate.  As stated, the nominee is currently employed under a contract of employment dated 26 June 2020.  Under that contract of employment, the nominee’s current annual income is $80,217.  The sponsor provided to the Tribunal pay slips for the nominee during the period 6 April 2022 to 19 January 2022 and pay slips for other employees for the period 2 February 2022 to 6 April 2022.

42. Mr Dehlsen provided to the Tribunal a letter or statement dated 20 April 2022 setting out how the nominee was employed.  It identifies staff in the employ of the sponsor who are on salary and terms and conditions of employment that are equal or less than those applicable to the nominee.  In that letter Mr Dehlsen states:

    “No Australian citizens or Australian permanent residents were made redundant or retrenched in the same role as Scott’s in the four months before lodgement (5 August 2017 to 5 December 2017).”

43. In the letter or statement,  Mr Dehlsen gives evidence of advertising for the nominated position on seek.com during the period 5 August 2017 to 5 December 2017.  Mr Dehlsen says that no suitable or eligible application for the nominated position was received other than from the nominee himself.  In the letter or statement of 20 April 2022 Mr Dehlsen states that it’s worth noting that:

    “The sponsor sometimes has ads that run month after month and still we have no one apply that has the skills necessary to fulfil the position.”

44. The Written Submissions, which were adopted by Mr Dehlsen, state that:

    “The terms and conditions of employment of the person identified in the nomination, being Mr Scott Duplock, will be no less favourable than the terms and conditions including the terms and conditions provided by the relevant enterprise agreement, being the Electrical, Electronic and Communications Contracting Award 2010, classification level PR 98841, that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing the equivalent work at the same location.”

45. The Written Submissions identify that the base rate of pay at the time of application was $58,661 (37 hours) under the terms and conditions of employment that are set by the Electrical, Electronic and Communications Contracting Award 2010.  The submissions state that the award sets the minimum, and over time Mr Scott Duplock’s pay has increased to its current rate of $80,217 per annum. 

46. Having regard to this evidence, I am satisfied that Regulation 2.72(10)(c) are met.

47. Regulation 2.72(10)(cc) requires that the base rate of pay under the terms and conditions of the employment that are, or would be, provided to an Australian citizen or permanent resident would be greater than the Temporary Skilled Migration Income Threshold (TSMIT) specified in the relevant instrument.  The Written Submissions state that the base rate of pay at the time of application was $58,661 (37 hours) under the terms and conditions of the employment that are set by the Electrical, Electronic and Communications Contracting Award 2010.  The award sets the minimum and over time Mr Scott Duplock’s pay has increased to its current rate of $80,217.

48. The sponsor provided to the Tribunal pay slips for an equivalent employee who is no longer employed by the sponsor.  Those pay slips record that that former employee was on a salary less than the nominee’s salary.  The Minister need not disregard the criteria in sub-paragraph 2.72(10)(cc) for the purpose of sub-regulation 2 as the base rate of pay is greater than the threshold of $53,900 specified in instrument IMMI 13\028 and the annual earnings of the nominee are equal to or greater than the temporary skilled migration income threshold of $53,900.

49. For these reasons, I am satisfied that the requirements of Regulation 2.72(10)(cc) are met. 

50. As part of the nomination, the applicant must certify various matters in writing as required by Regulation 2.72(10)(e).  These include that:

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation as listed in the ANZSCO dictionary or specified in the legislative instrument;

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is for the business, or an associated entity, of the applicant;

    ·the qualifications and experience of the nominee are commensurate with those specified with the occupation in the ANZSCO.

51. The Nomination (page 9) contains the certifications required so far as is relevant by regulation 2.72(10)(e).  Accordingly, the requirements of Regulation 2.72(10)(e) are met.

52. Regulation 2.72(10)(f) requires that the position associated with a nominated occupation is genuine.  This was considered in Cargo First Proprietary Limited v the MIBP [2016] FCA 30, where the court (at [34]) upheld the Tribunal’s approach to quantitively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

53. The evidence establishes that the sponsor was incorporated on 20 February 2011.  It currently employs 14 employees including the nominee.  It advertised for the nominated position within 12 months of employing the nominee.  It regularly advertises and has not found anyone suitable for the nominated position other than the nominee.  The sponsor is an established solvent employer who meets its employment and tax obligations.  It employs the nominee on terms no less favourable than terms of other relevant employees. The nominated position and the relevant responsibilities fall within those specified in ANZSCO 342313.  The nominee works for the sponsor with the other employees within the chain of command provided in a diagram submitted by the sponsor.  Having regard to this evidence I am satisfied the nominated position is genuine and regulation 2.72(10)(f) is met.

1. 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 the instrument.

2. The nominee is currently employed by the sponsor under a written contract of employment dated 20 June 2020.  The Written Submissions state that the sponsor will give a copy of the contract to the Minister.  During the hearing the Written Submissions were adopted by Mr Dehlsen.  Accordingly, based on this evidence, I am satisfied that regulation 2.72(10)(h) is met.

3. The nominee is not party to a work agreement and, accordingly, the requirements of Regulation 2.72(11) and (12) do not apply.

4. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the labour testing condition, unless the major disaster for skill and occupational exemptions in sections 140GBB – 140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

5. For these purposes, labour market testing means, testing of the Australian labour market to demonstrate whether suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.  To satisfy the labour market testing conditions, the testing must be undertaken within a prescribed period as set out in IMMI 13\136.

6. In addition: - the nomination must be accompanied by the evidence specified in sections 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancy 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.

7. Instrument IMMI 13\136 provides that within 12 months leading up to the nomination the sponsor must have tested the labour market.  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. 

8. The sponsor provided to the Tribunal evidence that between 5 August 2017 to 5 December 2017 it advertised the nominated position on Seek Limited.  Mr Dehlsen says that the nominee applied for the nominated position, via a Seek advertisement.  He says or indicates that no other suitable applicants were received.  The nominee fulfils the requirement and has the necessary skills and experience to fulfil the requirements for the nominated position.

9. Mr Dehlsen says that no Australian citizens or Australian permanent residents were made redundant or retrenched from the same role in the four months before lodgement (i.e. 5 August 2017 to 5 December 2017).  The sponsor has provided evidence of payment of advertisements with Seek Limited. 

10. The Nomination itself certifies that: - labour market testing commenced on 1 July 2017 for up to three months; the position was advertised on Seek;  there was a cost associated with advertising the position;  the sponsor has not retrenched any Australian citizens or Australian permanent residents in the nominated occupation or made their positions redundant in the last four months;  the nominee is the holder of a Sub-Class 417 (Working Holiday) Visa or a Sub-Class 462 (Working Holiday) Visa, currently employed by the sponsor;  and the sponsor determined from the labour market testing results that there are no suitably qualified, experienced Australian citizens or permanent residents readily available to fulfil the position as “We contacted recruitment and employment agencies and could not find an applicant that had the skills set required for the position.  We advertised on the internet through job recruitment websites.”

11. I am satisfied that the labour market testing condition applies to the sponsor.  Having regard to the evidence referred to above, I am satisfied that labour market testing has been undertaken in the specified period required by IMMI 13\136.  I am also satisfied the Nomination was accompanied by the evidence of testing as required by section 140GBA(3)(b).  The evidence establishes that no Australians or permanent residents were made redundant\retrenched from the nominated occupation.

12. For these reasons I am satisfied the labour market testing requirements in section 140GBA have been met.

    CONCLUSION

13. For the reasons given above, I am satisfied the applicant meets the applicable criteria for the Nomination to be approved.

    DECISION

14. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

    Peter Newton SC
    Member