ALLSHELTER PTY LTD (Migration)

ALLSHELTER PTY LTD (Migration) [2020] AATA 5455 (5 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ALLSHELTER PTY LTD
CASE NUMBER:  1809575
HOME AFFAIRS REFERENCE(S):          BCC2017/4222084
MEMBER:Alan McMurran
DATE:5 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 5 November 2020 at 5:07pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Metal Fabricator/Welder – engaged as an employee under a written contract of employment – copy of contract not provided to the Minister – claimed inadvertence by the agent – contract sighted by the Tribunal – 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
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2018 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).
The applicant applied for approval on 11 November 2017. 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl. 2.72(10)(h) because the applicant did not provide the Minister with a copy of a written contract of employment for the nominee. The delegate for the Minister found that the occupation was not specified as exempt from the requirement to provide a copy of the contract.
The nominee, Nino Sumang, a citizen of the Republic of the Philippines, has lodged a visa application for a temporary Subclass 457 visa, which was refused because of the refusal of the nomination. A review of that visa refusal is also before the Tribunal[1], and subject to the outcome of the nomination application.
[1] T case file1812496
The applicant appeared before the Tribunal by its director, Mr Russel Reddel, on 5 November 2020 to give evidence and present arguments. The hearing was conducted as a combined hearing with the review of the refusal of the nominee’s visa application. The Tribunal received oral evidence by telephone in accordance with the Tribunal’s pandemic protocol.
The applicant, and the visa applicant, were both represented in relation to the review by the same registered migration agent, who also appeared by telephone.
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
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 in r.2.72: s.140GB(2). 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 from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The Evidence
The Tribunal has available the electronic records from the Department’s files for both applicants and from the Tribunal. The Tribunal also has the oral evidence available from the hearing.
The documentation available includes:
·the director’s recent statement made 8 September 2020,
·job advertisements,
·recent organisation chart,
·position description for a metal fabricator,
·invoices for advertising the position,
·the VRA’s student visa grant dated 14 January 2014,
·financial statements for FYE 30 June 2019, financial statement for FYE 30 June 2020,
·current ASIC extract,
·employment offer letter dated 2 November 2017,
·English language test result for the nominee,
·BAS from March 2019 2 June 2020,
·submission from migration agent to the Tribunal’s s.359 (2) invitation and
·updated employment contract for the nominee dated 9 September 2020.
It is useful in relation to the documents submitted, to set out the director’s statement in full, addressing the employment contract issue:
8th September 2020
To Whom It May Concern:
Administrative Appeals Tribunal
RE: Subclass 457 nomination application for Nino Sumang / AllShelter Pty Ltd
Dear TribunalMember,
I write this in support of the company’s application to nominate a Factory Welding Leading Hand - Metal Fabricator (ANZSCO:322311) from overseas.
Allshelter is Australia's leading fabric shelter manufacturer and installer. Our aim is to ensure that our customers always experience our professionalism and courteousness in their journey through the design, selection, ordering and installation processes. Our commitment to service and quality keeps our customers coming back. We are dedicated to continuous improvement, ensuring our products are delivered on time, every time.
We currently employ approximately 33 staff, with 26 of them being Australian citizens and Permanent Residents.
Whilst our first choice is to hire locally and then seek to fill the shortages from overseas sourced labour, we have not had much success due to our remote location, as well as the skill level required to meet our contractual obligations, and this was the same in our most recent online recruitment campaign. We have submitted the outcome of this in a separate document for your review.
The role of the Factory Leading Hand will fall within the Operation department. This role will be responsible for participating in and supervising welding and fabrication part of the company’s products within the factory. This is a senior position that requires a lot of hands on experience and expertise, so that the selected candidate can not only lead by example with welding and fabricating techniques, but also take up the supervisory duties when required, ensuring that our factory welding bay’s daily operations are running to schedule and the quality of work is of a high standard. Therefore, given our clients’ expectations and the scope of their projects, we firmly believe that it is for the best interest of our clients, as well as our business, to have the best possible candidate to fill this position, and we have made this very clear in our recruitment advertising.
In November 2017, after not being able to recruit locally despite our advertisements on Seek and in our local paper, we have made the decision to sponsor the nominee, Mr. Nino Villamil Sumang, on a Subclass 457 visa, due to our increasing workload and the risk of not meeting our contractual obligations. Nino was going to take up the position of a metal fabricator. Unfortunately, whilst we have provided all requested documents and information, the migration agent that processed the application did not attach the signed employment contract (which we had provided) as part of the submission, which led to the refusal of Nino’s nomination application. The outcome was shocking and disappointing, especially when we solely relied on the expertise of the previous agent yet she failed us with such a simple yet unacceptable administrative error.
Based on all the information we have provided to date, we hereby confirm that:
•          Our business is still a valid standard business sponsor, and we are financially capable to support this nominated position.
•          We have thoroughly tested the local labour market and have recruited as many Australians as we can, and we only recruit from overseas when we are not able to utilize the local labour market to meet our workload.
•          The position is genuine and is undoubtedly consistent with the business of our nature as a manufacturer.
•          The salary we intend to pay the nominee is in line with the Australian market rate.
•          The previous application was refused solely due to an administrative error by the migration agent, and the required documentation has always been on file.
·In this regard, I can confirm the company’s genuine need to employ for a Factory Welding Leading Hand / Metal Fabricator to be employed, and we confirm that we still wish to appoint Nino Sumang to fill this position. We are more than happy to discuss this matter in further details with your office, and we look forward to a fair and reasonable outcome from your office on this matter.
Yours sincerely,
Tim Reddel
Managing Director
The Hearing - Oral Evidence
The Tribunal explained to the parties the purpose of the hearing, to consider afresh the application and the evidence supporting the nomination. The Tribunal identified the issue concerning the employment contract, noting that all the requirements of the regulations 2.72 need to be met for the application to succeed.
Both parties appearing said they understood the process, and neither was seeking any adjournment or deferral for the purpose of submitting any further information or documentation, unless requested by the Tribunal.
The applicant was represented at the hearing by its authorised officer, the Managing Director Mr Russell Reddel (“the director”). The nominee also gave evidence as set out below. The director affirmed that the content of the statement set out above at paragraph 11 was all true and correct.
Mr Reddel explained some background about the business of the plaintiff. The plaintiff is an Australian manufacturing and engineering business specialising in the manufacture and design of a range of container-based shelters. It describes itself as a market leader in innovation and quality.
The director said that the business is located in central western New South Wales in a relatively remote community which finds it difficult to recruit labour. He referred to the company’s current organisation chart as submitted, saying it currently employs 6 other welders in the same role as the nominee, in addition to some contracted labour hire.
He said the company currently employs 4 or 5 Subclass 457 Visa holders, all of whom were approved by the Department. He said he was surprised in relation to this application it was not approved, discovering that the employment contract with the nominee required as evidence, had not been submitted, due to a mistake made by the migration agent at the time of lodgement.
He said that he had interviewed the nominee personally at the company’s manufacturing site at Lake Cargellico in New South Wales. He said that he had satisfied himself in relation to the applicant’s work experience and qualifications before offering him employment. He said at the time in November 2017, the company was actively searching for persons to fill the nominated occupation. He confirmed that Mr Sumang, as the visa applicant (“nominee”), had agreed to work at the manufacturing site on a full-time basis, equating to 45 hours per week at an agreed hourly rate, currently $26.45 per hour. It is his understanding the salary exceeds the average of approximately $55,000 per annum, with superannuation. He said the same hourly rate is paid to the other welders/metal fabricators who work for the applicant in the same occupation.
He said the company has no terminations or redundancies and is continually on the lookout to hire staff, “if we can find them”. He explained the difficulty is relocating staff to a remote location in central New South Wales at Lake Cargellico. He said the company has warehouse premises in the Blue Mountains, but its principal operations are in regional New South Wales.
The director explained the hiring process for staff. He said the applicant uses a recruiter, Perdamans, who advertise online and produce resumes. He said they put up candidates and he then interviews them. He said the role of welder/metal fabricator is critical to their organisation which specialises in the manufacture of metal canopies and shelters.
The Tribunal went through with the director the tasks and duties associated with the role as set out in ANZSCO[2]. The Tribunal explained that the guide provided a useful starting point to determine what work was necessary for the occupation and to be performed by the nominee.
[2]ANZSCO metal fabricator/welder unit group 3223
The director explained the applicant is involved in all the tasks as described which include marking off and fabricating structural steel and other metal stock, making or repairing metal products and structures, and using various welding techniques. He explained the nominee is also competent and required to study blueprints, drawings and specifications for job requirements, select, clean and prepare metal stock, shape and bend metal sections and use hand tools such as flame cutting torches and metal cutting machines.
The director confirmed that the nominee had not worked prior for the applicant and was not on a subclass 457 visa at the time of his engagement. He said he was under a written contract of employment in November 2017, which included a probation period now expired. He said he is satisfied with the nominee’s continuing performance in the role and that he is essential for the carrying on of the business.
The director said the applicant was a current standard business sponsor until 2025, according to the Department file, and he was not aware of any sanctions or concerns raised over the applicant’s prior sponsorships, or of any cancellations relating to any sponsorships or visas issued pursuant to those sponsorships by the applicant.
The Tribunal asked questions of the nominee. The nominee confirmed his full name date of birth and his Filipino citizenship. He said he had come to Australia from Saudi Arabia to improve his industry knowledge in Australia, and then looked for employment.
He said in late 2017, a colleague suggested he send his resume to the applicant who was looking to recruit metal fabricators in regional New South Wales. The nominee said he was interviewed and was successful in his application and had been working full-time in the role for the applicant since November 2017.
The Tribunal explained to the nominee the process, and that if the nomination was successful, his application for the visa would need to be reconsidered by the Department to ensure compliance with the remaining Regulations.
The visa applicant said he understood and had no further information to provide. He said he had listened to and understood the conversation with the director, with which he agreed.
Findings
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal finds that the applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a), the occupation being welder/metal fabricator for a position in regional New South Wales;
The applicant has identified in the nomination a proposed applicant, being the nominee, for a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b);
The Tribunal is satisfied that nomination was made using the approved form and fee and that the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5);
The Tribunal is also satisfied on the available information that the applicant has provided the required certification as to whether or not the applicant has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and that the nomination includes the location in regional New South Wales where the occupation will be carried out, and the 6 digit ANZSCO code (ANZSCO 3223-Structural Steel and Welding Trades Workers).
The Tribunal finds on the Department information that the applicant is a current standard business sponsor for the period from 2015-2025 and has provided the relevant certifications mentioned in r.2.72(10) or r.2.72(11): r.2.73(4)/(4A).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The Tribunal is satisfied Department records indicate that the applicant is a current standard business sponsor, in effect from 4 August 2015 to 4 August 2025.
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
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.
The Tribunal is satisfied from the available information that the applicant has identified the nominee as the proposed visa applicant and who will work in the nominated occupation of welder/metal fabricator and at the location specified in regional New South Wales, Lake Cargellico.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the Subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 17/060; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal finds it is satisfied that the applicant has provided the name of the occupation and the relevant code, Metal Fabricator/Welder (ANZSCO 322311).
The Tribunal is satisfied the applicant has provided as part of the nomination location in regional New South Wales at which the nominated occupation is to be carried out.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)

Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal finds from the Department records that the relevant certification has been completed in the application.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
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 rr.1.13A and 1.13B.
The Tribunal is satisfied from the available information and documentation provided that there is no adverse information known about the applicant or person associated with the applicant either to the Department or the Tribunal.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, 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: r.2.72(10)(b).
The Tribunal has listened carefully to the oral evidence and discussion with the director and the nominee. The Tribunal is satisfied that the nominated occupation corresponds with the description provided by ANZSCO of the occupation, and the tasks and duties to be carried out and in terms of the experience offered by the nominee. The Tribunal notes the occupation is not subject to any applicability conditions.
For these reasons the requirements of r.2.72(10)(aa) are met.
The Tribunal finds it is further satisfied there is no requirement for the nomination to be supported by a specified organisation.
For these reasons the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions 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. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
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: r.2.57(3A). ‘Earnings’ is defined in r.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.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument the relevant instrument r.2.72(10AA). The Tribunal notes from the evidence that there are other Australian citizens or permanent residents performing equivalent work at the same location.
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI13/028, and which specifies earnings of $53,900 per annum: r.2.72(10AB).
The Tribunal has had regard to the documents and information provided and is satisfied that the terms and conditions in the written employment contract with the nominee and as set out in the document described as “All Shelter Position Description”, are the same as or equivalent to those required by the relevant Commonwealth legislation[3] and applicable to persons performing equivalent work at the same location.
[3] Fair Work Act
The evidence discloses the terms and conditions for payment of an industry rate of $26.45 per hour based on a 45-hour week, as agreed with the nominee. It also includes provisions for payment of mandatory superannuation and leave entitlements.
The Tribunal is satisfied the terms and conditions are no less favourable than those for the relevant Australian equivalent worker and having regard to the comparable evidence provided in the form of current advertisements for similar positions. The Tribunal finds that there is no substantial contrary evidence that the nominee’s set of conditions is not less favourable than the Australian equivalent’s set of conditions.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the Temporary Skilled Migration Income Threshold (TSMIT) specified in the instrument IMMI13/028 at $53,900.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A).
The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/ 028: r.2.72(10AB).
The evidence before the Tribunal indicates the nominee’s base rate of pay$26.45 per hour a based on a 45-hour week as agreed, the nominee’s average annual earnings will exceed $55,000 per annum and which figure exceeds the skilled migration income threshold.
The Tribunal has reviewed the evidence from Payscale Australia as to the annual earnings and base rate of pay for an equivalent Australian citizen or permanent resident performing the occupation, and which is in a range from $39,000 per annum upwards to $70,000 per annum.
The Tribunal is satisfied that the base rate of pay for the Australian equivalent is in range both below and greater than TSMIT. In this instance, the base rate of pay for the Australian equivalent on average ($54,000 per annum) is greater than TSMIT.
To the extent it is applicable, the Tribunal finds it is reasonable to disregard the requirement that the base rate of pay (from a low of $39,000 to $53,900 per annum), may not be greater than TSMIT in some circumstances, and which in any event in this instance would not apply, as the nominee’s actual income exceeds the threshold.
For these reasons the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e).
The Tribunal finds the applicant has certified that the tasks described by the director and the nominee align with a significant majority of the tasks as specified in the relevant instrument.
The Tribunal is further satisfied that the applicant has certified it operates its business in Australia and that the nominated occupation is an occupation specified in the relevant instrument.
The Tribunal has had regard to the information on the nominee’s file and is satisfied the qualifications and experience of the nominee are commensurate with those for the specified occupation. That information includes an outline of the nominee’s work history and in particular with the applicant, and as described orally by the director and.
For these reasons the requirements for certification under r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal has carefully listened to the oral evidence and paid regard to the information produced. The Tribunal finds it is satisfied the position is what it purports to be and the occupation is that of a metal fabricator/welder working in a manufacturing enterprise in regional New South Wales. The Tribunal has examined the tasks being performed for the relevant occupation and which meet the suggested criteria in the relevant ANZSCO guide.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
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 relevant instrument as exempt.
The Tribunal finds the applicant is not exempt, and that a copy of the written employment agreement has been provided as required both to the Department, and more recently on 9 September 2020 to the Tribunal. This was the provision which had troubled the Department and which the director explained in evidence had been due to claimed inadvertence by the agent at the time in not uploading a copy of the employment agreement current as at November 2017. The Tribunal has sighted the written employment contract required by the regulations to be produced in support of the application and as required by the Minister.
The Tribunal is satisfied that the applicant will engage the nominee only as an employee under a written contract of employment, and in accordance with the copy of the contract as produced.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
The Tribunal has reviewed the relevant documentation and the Department file and is satisfied the applicant is not a party to a work agreement.
For these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
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.
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 IMMI13/137. 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.
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. The labour market testing provisions apply in this instance.
The applicant has provided evidence of its attempts at advertising for the occupation within the requisite 12-month period of the engagement with the nominee. Those attempts at advertising are evidenced through a local newspaper and on the online platform, Seek, in May 2017. A copy of the advertisement, the invoices from the advertisers, and evidence of payment have been produced.
The Tribunal finds there is no evidence of any suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position (s.140GBA(3)(d)).
The Tribunal also notes and accepts the evidence of the director that there were no Australian citizens or permanent residents made redundant or retrenched from the nominated occupation around the time of the application and the advertisements.
For these reasons, the labour market testing requirements in s.140GBA are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alan McMurran

Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2020] AATA 5455

5 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal