Australasian Hail Network Pty Ltd (Migration)

[2024] AATA 225

Australasian Hail Network Pty Ltd (Migration) [2024] AATA 225 (2 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Australasian Hail Network Pty Ltd

REPRESENTATIVE:  Mr Alasdair Colin Dougall

CASE NUMBER:  2102199

HOME AFFAIRS REFERENCE(S):          BCC2020/1383460

MEMBER:Karen McNamara

DATE:2 February 2024

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 02 February 2024 at 4:34pm

CATCHWORDS

MIGRATION – nomination of a position – Medium-term stream – occupation of Accountant (General) – inapplicability condition – clerical, bookkeeper or accounting clerk position – tasks of the position correspond to nominated occupation – annual turnover – 10 permanent employees – position genuine and full-time – employment conditions no less favourable – recruitment website and other advertising – decision under review set aside         

LEGISLATION

Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, Schedule 2, cls 482.223, 482.232, 482.312; rr 1.03, 1.13, 2.57, 2.72, 2.73, 5.42

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 16 February 2021, to refuse to approve the application by Australasian Hail Network Pty Ltd (the applicant) for nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant operates a motor vehicle hail repair business and states it is the largest contract repairer to the Suncorp Group. The head office is based in Kirrawee (Sydney) with regional locations throughout New South Wales, Queensland and Victoria. ASIC information shows the company was registered in 2004.  

3. On 17 April 2020, the applicant lodged an application for nomination for the occupation Accountant (General) (ANZSCO 221111). Nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream.

4. Regulation 2.72 prescribes general and stream-specific 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. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream for a period of up to 4 years.

5. On 16 February 2021, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.2.72(8)(b) of the Regulations, because the delegate found that the nominated position is affected by an exception (caveat) specified in the relevant legislative instrument, and as a result the nominated occupation is not applicable to the nominee.

6. The applicant lodged an application for review with the Tribunal on 24 February 2021. The review application was accompanied by a copy of the delegate’s decision.

7. On 30 January 2024, the applicant represented by Ms Ali Sanders (referred to below as the applicant) appeared before the Tribunal, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Adam Woodlands (CEO). Additional evidence was provided by Mr Nael Mustafa (referred to below as the nominee) in the hearing for the related subclass 482 visa (AAT Case file 2105344), held on 11 January 2024.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. The Tribunal notes that plentiful evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

10. 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

11. 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 work sponsor and meets the requirements in reg 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. In addition, the labour market testing requirements in s 140GBA must be met.

    The nomination must comply with the prescribed process

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

13. The Tribunal has had regard to the material in the Department’s file and is satisfied that:

    ·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1).

    ·the nomination was made using the approved form and fee, as per r.2.73(3),(4) and (5);

    ·the nomination was accompanied by the applicable training contribution charge, as per r.2.73(5A).

    ·the nomination was made in the Medium-term stream as the nominated occupation of Accountant (General) (ANZSCO 221111) is a medium term specified skilled occupation in the relevant instrument, LIN 19/048, as per r.2.73(6);

    ·the applicant identified the nominee Mr Nael Mustafa in the nomination, as per r.2.73(8);

    ·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nominating business, as per r.2.73(9);

    ·the nomination includes disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act: r.2.73(12);

    ·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and

    ·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).

14. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.

    No adverse information known to Immigration

15. Regulation 2.72(4) 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 regs 1.13A and 1.13B.

16. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator or an associated person.

17. For these reasons the requirements of reg 2.72(4) are met.

    Nominator is a standard business sponsor

18. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

19. Departmental records indicate that the applicant was approved as a standard business sponsor on 21 December 2019 to 21 December 2024, therefore the agreement is valid. The Tribunal is therefore satisfied that the applicant is a standard business sponsor.

20. For these reasons the requirements of reg 2.72(5) are met.

    Payment of debt mentioned in s 140ZO

21. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

22. There is no evidence before the Tribunal that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.

23. For these reasons, the Tribunal finds that the requirements of r.2.72(5A) are met.

    Requirements for existing Subclass 457 or Subclass 482 visa holders

24. The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 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 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);

    ·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).

25. The Department’s records indicate that the nominee, Mr Nael Mustafa has never held a Subclass 457 or 482 visa.

26. As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.

    Specified occupation

27. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.

28. The Tribunal finds that the nominated occupation of Accountant (General) (ANZSCO 221111) is specified in the Medium- term skilled occupation list in LIN 19/048.

29. Further, the Tribunal is satisfied that the occupation of Accountant (General) has attached to it the following inapplicability conditions (or ‘caveats’) in accordance with instrument IMMI 19/048:

    Item 6:   The position is a clerical, bookkeeper or accounting clerk position

    Item 19:The position is in a business that has an annual turnover of less than AUD1,000,000

    Item 21: The position is in a business that has fewer than 5 employees

30. On 16 February 2021, the delegate refused the application on the basis the applicant’s nomination did not satisfy the requirements of r.2.72(8)(b) of the Regulations, because the delegate found that the nominated position is affected by an exception (caveat) specified in the relevant legislative instrument, and as a result the nominated occupation is not applicable to the nominee.

31. The delegate in summary was not satisfied that the nominee will be performing the full breadth of duties of an Accountant and concluded that a significant amount of the nominee’s time would be spent on administrative/bookkeeping tasks.

32. The delegate therefore concluded based on the information before them, that the position is affected by an exception specified in the relevant legislative instrument, and as a result the nominated occupation is not applicable to the nominee.

33. The Tribunal has taken into account the available documentary evidence contained on the Department and Tribunal files and oral evidence provided to the Tribunal during the hearing. The Tribunal has had the benefit of discussing with the applicant and nominee at the hearing, the precise tasks and responsibilities undertaken by the nominee, the business organisational structure and requirements for the nominated occupation.

34. The Tribunal, therefore, on the basis of this evidence, has formed a different view to that of the delegate and accepts the evidence presented by the applicant as to the nature of the tasks of the nominated position and operating environment of the business.

35. In their verbal evidence, the applicant and the nominee outlined the duties and tasks of the position consistent with the ANZSCO description for the occupation of Accountant (General). The Tribunal also cited documentary evidence including an employment agreement, position description concerning the position held by the nominee, organisation chart, letter dated 29 September 2023 from the external Accountant clarifying external accounting services provided and the nominee’s resume, tertiary qualifications (Bachelor of Commerce majoring in accounting attained from Macquarie University) and enrolment in CPA program.

36. The aforementioned documentation, in conjunction with the verbal evidence received at the review hearing, indicates the tasks and duties performed by the nominee are commensurate with the occupation of Accountant (General) as defined in ANZSCO. Further, the Tribunal accepts that the nominated position is not clerical, bookkeeping or an accounting clerk position. Therefore, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition (or ‘caveat’).

37. The applicant has provided to the Tribunal its most recent (2022/23 financial year) financial statements and BAS returns.

38. The financial evidence indicates that the applicant’s turnover for the financial year ending 30 June 2023 exceeded $17 million. On the evidence before it, the Tribunal is satisfied that the applicant’s annual turnover was more than AUD1,000,000.

39. Therefore, the Tribunal is satisfied that the nominated position is not excluded on the basis of a business having an annual turnover of less than AUD $1,000,000.

40. The applicant has provided an organisation chart and oral evidence which indicates that the applicant employs approximately 10 permanent employees. On the evidence the Tribunal is satisfied that the position is in a business that has more than 5 employees.

41. Having consideration to the entirety of the evidence before it, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition (or ‘caveat’). Therefore, the Tribunal is satisfied that the nominated occupation is duly listed in instrument LIN19/048 and is applicable to the nominee and finds that the requirements of r.2.72(8) are met.

    Position must be genuine and full-time

42. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. The intention of reg 2.72(10)(a) is to ensure that positions nominated under this provision are in skilled occupations and are genuinely needed by the nominating employer.[1] A similar requirement 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. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

    [1] Explanatory Statement to SLI 2013, No 146, Attachment B, p.34.

43. The Tribunal considers that r. 2.72(10)(a) is a determination of not only whether or not, the position in question is genuine in the sense that the position exists, but also whether the position is really what it purports to be. In terms of the latter, the Courts have confirmed that the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor.[2]

    [2] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34] In Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court 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.

44. The Tribunal further considers, there is no single test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering the qualitative assessment (as per Cargo), the particular facts and circumstances of the matter and the actual tasks and duties performed and described as the nominated occupation.

45. In undertaking its assessment of whether the position associated with the nominated occupation is genuine, the Tribunal has considered numerous factors, including the tasks performed by the nominee, the primary activities of the business and the scale of those activities, the recruitment/employment history of the position and the operating environment in which the position functions.

46. The applicant provided to the Tribunal a position description pertaining to the nominated occupation of Accountant and work examples supporting the nominee undertakes said duties as noted in the position description. The position description as prepared and submitted by the applicant states as follows:

    Position summary

    This full-time role of Internal Accountant is a key member of the finance team taking ownership for the timely and accurate processing of operational accounting tasks and financial reporting, as well as coaching staff members at Australasian Hail Network.

    1.2    KEY RESPONSIBILITIES

KEY RESPONSIBILITIES	TASKS	KPI
Financial Reporting	·      Overall Management of the month end closing process and reporting ·      Prepare month-end journals and reconcile general ledger ·      Prepare and review the Audit Reconciliation File ·      Prepare annual cash flow projections ·      Prepare monthly profit/loss statement to present to Director and management team ·      Prepare weekly average cost of repairs report to manage Suncorp Group KPI model. ·      Prepare monthly cost comparison report for spare parts spend tracking. ·      Prepare and present monthly cost report to procurement manager to assist in review of the effects on contract terms set with debtor	Accuracy and timeliness of recorded information
Budgeting	·      Prepare the annual budget and forecasts as required by the business ·      Prepare operating profit/loss report for in-house vs external provider comparison ·      Compare monthly budgeted vs actual expenses	Accuracy of recorded information
Tax	·      Prepare and lodge quarterly Business Activity Statements ·      Prepare and lodge monthly payroll tax calculations ·      Prepare and lodge monthly instalment activity statement ·      Review monthly superannuation reconciliation ·      Maintain accounting and taxation depreciation schedule ·      Prepare year-end journals and finalize all accounts for tax lodgment ·      Liaise with external tax accountant for all legal matters	Accuracy and timeliness of recorded information
Accounts Processing	·      Review Accounts Payable payments ·      Approve and process weekly payments ·      Prepare batch invoicing ·      Follow up accounts receivable debtors to ensure that all invoices are paid on time ·      Reconcile various bank accounts by compiling and balance financial information	Accuracy and timeliness of recorded information, % of AP payments made on time Ensure timely invoicing to maintain sufficient cashflow reserves for weekly payments
Office Administration	·      Assist the staff members with accounts related enquiries ·      Ensure all statutory requirements relating to accounting record keeping is adhered to ·      Provide recommendation and implementation strategy for AHN’s new in-house ERP system	N/A
Other Duties	·      Identify areas of cost savings and business  improvement initiatives ·      Train new employees on processes relating to accounts administration tasks	N/A

1. The Tribunal has also considered the ANZSCO occupational dictionary with regard to the occupation of Accountant (General) (ANZSCO 221111). ANZSCO states in relation to the occupation of Accountant (General) as follows:

   UNIT GROUP 2211 ACCOUNTANTS

   
   ACCOUNTANTS provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance.

   Indicative Skill Level:
   In Australia and New Zealand:

   Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

   
   Registration or licensing may be required.

   Tasks Include:

   oassisting in formulating budgetary and accounting policies

   opreparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies

   oconducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation

   oexamining operating costs and organisations' income and expenditure

   oproviding assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements

   oproviding financial and taxation advice on business structures, plans and operations

   opreparing taxation returns for individuals and organisations

   oliaising with financial institutions and brokers to establish funds management arrangements

   ointroducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems

   omaintaining internal control systems

   omay appraise cash flow and financial risk of capital investment projects

   
   Occupations:

   221111 Accountant (General)
   221112 Management Accountant
   221113 Taxation Accountant

   
   221111 ACCOUNTANT (GENERAL)

   
   Provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements. Registration or licensing may be required for certain services such as auditing.

   Skill Level: 1
   Specialisations:  Financial Analyst
   Insolvency Consultant
   Insolvency Practitioner

1. At the hearing the applicant and nominee provided comprehensive descriptions of the tasks and responsibilities of the position as aligned to the applicant’s business size and operational requirements.

2. The applicant provided credible evidence explaining the business structure, current financial position, and contribution the nominee makes in regard to the financial management and operations of the business. In evidence before the Tribunal the applicant told the Tribunal the nominee was integral to the financial operations of the business including his understanding of the motor vehicle repair business and contractual financial reporting requirements as stipulated by Suncorp.

3. The Tribunal has also had regard to the applicant’s most recent (2022/23) financial statements including BAS returns for 2023 financial year, which record that the business as of 30 June 2023, reported sales exceeding $17 million with proportionate profit and net equity. Information before the Tribunal including bank statements, payroll records and the nominee’s income statements, show the applicant has paid the nominee regular salary payments.

4. Having carefully considered the information before it, the Tribunal is satisfied that there is a business need for the position which supports that the position associated with the occupation of Accountant (General) (ANZSCO 221111) is genuine. 

5. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s operational requirements, its size and activities, the tasks to be undertaken in the position, the nominee's experience, qualifications, and employment history with the applicant and the financial capacity of the applicant to support the position.

6. Accordingly, in consideration of the evidence before it, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and it finds that the requirements of reg 2.72(10)(a) are met.

7. The Tribunal accepts from the material provided, including the nominee’s employment agreement dated 5 October 2023, income statements, payroll records, bank statements and details of the nominee’s work history with the applicant, that the position is a full time one. Accordingly, it finds that r.2.72(10)(b) is met.

8. As the criteria in both rr.2.72(10)(a) and (b) are satisfied, accordingly the requirements in r.2.72(10) are met.

   Employment under contract

9. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the relevant instrument LIN 19/212 (the Tribunal is satisfied that the nominated occupation in this case is not specified in the relevant written instrument). In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)). In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.

10. The applicant has provided to the Tribunal an employment agreement signed and dated by the applicant and nominee on 5 October 2023, setting out the nominee’s terms and conditions of employment and stipulating a salary of $100,000 per annum (exclusive of superannuation).

11. For these reasons the requirements of r.2.72(11) are met.

    Annual earnings

12. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to IMMI 18/033: reg 2.72(15)( c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the Temporary Skilled Migration Income Threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

    ·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

    ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

13. The Tribunal is satisfied from the evidence provided, including the nominee’s employment agreement dated 5 October 2023 and recent payslips, record the nominee’s salary as $100,000. The nominee’s income statements for 2022/23 financial year show the nominee received gross payments of $92,932. As the salary payable to date is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.

14. Evidence before the Tribunal supports that the applicant determined the annual market salary rate by way of reviewing advertisements for similar positions and consideration of industry salary survey information. In support of determining the annual market salary the applicant has provided to the Department and Tribunal various advertisements and industry salary survey information on Seek, Payscale and JSA recruitment websites. The advertisement on Seek (provided to the Department at time of lodgement) list the salary range for an Accountant between $60,000 to $64,999 per annum. Contemporary advertisements provided to the Tribunal show the salary range for an Accountant is $70,000 to $105,000 (exclusive of superannuation) Payscale notes the salary range between $39,000 to $71,0000 per annum with the median base salary for an Accountant is $51,000 per annum. The Tribunal notes that the salary amounts represented in this information as provided by the applicant, are in $US. JSA report the median weekly earnings for an Accountant as $1,756 ($91,312 per annum)

15. Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15)(c) are met.

16. This amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for r.2.72(15)(b). Relevant to this matter at the time this application was lodged on 17 April 2020, IMMI 18/033 specified this as $53,900. The Tribunal is satisfied that the annual market salary rate exceeds the relevant TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.

17. Information before the Tribunal including the nominee’s employment agreement dated 5 October 2023, specify the salary is $100,000 per annum exclusive of superannuation.

18. Accordingly, the Tribunal finds as per the evidence before it (including the nominee’s employment agreement, bank statements and payroll records) that the nominee’s annual salary rate will not be less than the annual market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as stipulated in the aforementioned evidence, exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.

19. Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.

20. Accordingly, the requirements of r.2.72(15) are met.

    Employment conditions

21. Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.

22. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.

23. The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the employment agreement dated 5 October 2023. The Tribunal notes that the terms and conditions set out in the nominee’s agreement/contract appear consistent with the National Employment Standards.

24. The Tribunal is therefore satisfied that r.2.72(18)(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices. Accordingly, the Tribunal finds that r.2.72(18)(b) is met.

25. Accordingly, the requirements of r.2.72(18) are met.

    Labour Market Testing

26. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).

27. 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 instrument LIN 18/036. In addition:

    ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;

    ·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);

    ·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; 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.

28. 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 of 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.

29. The Tribunal considered whether the labour market testing condition applies to the applicant, having regard to:

    ·whether it would be inconsistent with an international trade obligation specified in the relevant instrument of the Register of Instruments: Business Visas - s.140GBA(1)(c); and

    ·whether the nomination is subject to the major disaster exemption or the skill and occupational exemptions of the Register of Instruments: Business Visas - s.140GBB and 140GBC.

30. Having regard to the evidence before it, the Tribunal is satisfied the labour market testing condition applies to the applicant. There is nothing before the Tribunal to suggest any exception applies that is subject to the category of major disaster exemption or the skill and occupational exemptions. Nor is there anything to suggest it would be inconsistent with an international trade obligation specified in a relevant legislative instrument.

31. Accordingly, the applicant must satisfy the LMT requirements above.

32. As the application is subject to the LMT requirement, the applicant must demonstrate the testing was undertaken in the manner required by the instrument (LIN 18/036). The application must attach evidence of that testing, and the availability of any suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder not readily available to fill the nominated position: 140GBA(d).

33. The legislative instrument includes details of the method for advertising the position. It requires there must be at least two advertisements commissioned by the sponsor that are relied upon, and which appear on a recruitment website with national reach in Australia, similarly in print media with national reach in Australia or on radio with national reach in Australia. The position must include its title, skills and experience required, the sponsor’s name or the agency being used, and the salary for the position, if the earnings are lower than $96,400.

34. The instrument further provides that for the purposes of paragraph 140GBA(3)(aa) and 140GBA(6), the applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published in print, radio or by website address.

35. S.140GBA (6AB) provides that the duration determined for the purposes of s.140GBA(6)(d) must be at least 4 weeks.

36. The Tribunal has reviewed the information provided with the nomination application made on 17 April 2020 and is satisfied that:

    ·LMT was undertaken on 5 February 2020 for more than 4 weeks.

    ·The position was advertised on SEEK and Indeed recruitment websites. The advertisements were in English and identified the applicant and provided the salary range of $60,000 to $70,000.  

    ·The applicant stated on the nomination application form that there were 15 applications in response to the advertisements.  In submissions to the Tribunal (Summary of domestic recruitment efforts) the applicant states that 70 applications were received in response to the Seek advertisement and 24 in response to the indeed advertisement.

    ·The applicant stated that the applicants in response to the advertisements, were not eligible or suitable for the role.

    ·The applicant further indicated that it had not retrenched or made redundant any employees in the 4 months prior to undertaking LMT.

37. In conclusion, the Tribunal is satisfied that:

    ·LMT was undertaken in the specified period, as per s.140GBA(3)(a) and (4);

    ·LMT was undertaken in the manner as set out under LIN 18/036: s.140GBA(3)(aa) and (5);

    ·It was accompanied by evidence of the testing as required by s.140GBA(3)(b)(i) and (6A); and

    ·there was no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position, as per s.140GBA(3)(d).

38. The Tribunal is further satisfied that the applicant indicated in the nomination application and at the hearing, that no Australians or permanent residents were made redundant/retrenched from the nominated occupation, and therefore s.140GBA(4A) does not apply in this case.

39. For these reasons, the Tribunal finds that the labour market testing requirements in s.140GBA are met.

    Nomination training contribution charge

40. Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).

41. The Tribunal is satisfied that the applicant is liable to pay the training nomination charge as the application was made on 17 April 2020. Item 5(2) of the Migration (Skilling Australians Fund) Charges Regulations 2018 sets out the formula for calculating the amount due, which is the base amount prescribed in the legislation multiplied by the number of years of sponsorship.  In this case, at the time of application, the applicant’s business had an annual turnover of more than $10,000,000 and so the base amount is $1,800 (per Item 5(2)(b) of the Migration (Skilling Australians Fund) Charges Regulations 2018). The length of visa approval sought is 4 years. Therefore, the amount due is $7,200.

42. The applicant has provided the Tribunal with a copy of a receipt dated 17 April 2020 for payment of the relevant training nomination charge in the amount of $7,200. Therefore, the requirements of s.140GB(2)(aa) are met.

43. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

    DECISION

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

    Karen McNamara
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

    (1)This regulation applies in relation to a person who:

    (a)is any of the following:

    (i)       a standard business sponsor;

    (ii)      a person who has applied to be a standard business sponsor;

    (iii)     …

    (iv)    …

    (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

    (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

    (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

    (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

    (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

    Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

    (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

    (4)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.

    (5)The Minister is satisfied that:

    (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

    (b)…

    (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

    (6)If the nominee holds:

    (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)a Subclass 482 (Temporary Skill Shortage) visa;

    the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

    (7)However, the Minister may disregard the fact that one 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.

    (8)The Minister is satisfied that:

    (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

    (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

    (ii)      …; and

    (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

    (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

    (a)whether the occupation is:

    (i)       a short term skilled occupation; or

    (ii)      a medium and long term strategic skills occupation; and

    (b)either:

    (i)       the 6-digit ANZSCO code for the occupation; or

    (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

    (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

    (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

    (i)       the person who nominated the occupation;

    (ii)      the nominee;

    (iii)     the occupation;

    (iv)    the position in which the nominee is to work;

    (v)     the circumstances in which the occupation is undertaken;

    (vi)    the circumstances in which the nominee is to be employed in the position.

    (10)The Minister is satisfied that the position associated with the occupation is:

    (a)genuine; and

    (b)a full-time position.

    (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (11)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is not an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

    (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

    (12)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

    (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

    (14)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

    (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

    the person has provided evidence to the Minister that the nominee satisfies:

    (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

    (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

    (15)Subject to subregulation (16), if:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

    the Minister is satisfied that:

    (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

    (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

    (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

    (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

    (g)either:

    (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

    (ii)      it is reasonable to disregard any such information.

    (16)However:

    (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

    (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

    (ii)      it is reasonable in the circumstances to do so; and

    (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

    (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

    (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

    (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

    (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

    (a)either:

    (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)      it is reasonable to disregard any such information; and

    (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

    (19)…