Colbay Building Services Pty Ltd (Migration)

[2023] AATA 3687

Colbay Building Services Pty Ltd (Migration) [2023] AATA 3687 (27 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Colbay Building Services Pty Ltd

REPRESENTATIVE:  Mrs Julie Troja (MARN: 1573548)

CASE NUMBER:  1933601

HOME AFFAIRS REFERENCE(S):          BCC2019/5300573

MEMBER:Namoi Dougall

DATE:27 September 2023

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 27 September 2023 at 3:42pm

CATCHWORDS
MIGRATION – nomination – short term stream – Contract Administrator – no adverse information known to Immigration – standard business sponsorship approval – position associated with the nominated occupation is genuine and full time – standard business sponsor–decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 140GB
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73

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 7 November 2019 to refuse to approve the applicant’s 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 applied for approval on 22 October 2019. A 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. 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 Short-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl.2.72(10)(a) because the delegate was not satisfied that the position was genuine as the delegate was satisfied that, on the nominee’s migration history and that she was the spouse of the director of the applicant, the poison was created to facilitate the entry or stay of the nominee.

4. Mr Jose Nino, the director, of the applicant appeared before the Tribunal on 13 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Bayer Hernandez. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicant was represented in relation to the review.

BACKGROUND

1. The nomination application indicated that the nominee would be employed in the nominated occupation of Contract Administrator for a period up to 2 years on a market salary rate of $65,000 per annum. The location of the position is Picnic Point, New South Wales.

2. At the hearing Mr Nino stated that the applicant ‘s business does service and installations of air conditioning ducting and started in 2014. Currently there are 4 employees and the nominee, who is in charge of the office.  The employees are employed on a casual basis as it is installation and there is not always a lot of work.

3. 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

1. 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

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

2. The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant, Ms Gloria Edelmira Bayer Hernandez as the person who will work in the occupation as required by regs 2.73(1) and (8). The nomination was made using the approved form and the fee has been paid as required by regs 2.73 (3),(4) and (5). The nomination includes the location of Picnic Point, New South Wales, at which the occupation will be carried out and includes the name, 6‑digit ANZSCO code of the occupation of Contract Administrator (ANZSCO 511111), the proposed period of stay of up to 2 years and the annual turnover for the nominator of AUD464,662 as required by reg 2.73(9). The nomination does not apply in the Labour Agreement stream and the occupation is for a Short-term skilled occupation in the Short -term stream as required by reg 2.73(6).

3. The nomination includes written certification that:

   ·The person has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.

   ·The employment contract with the nominee complies with or will comply with Commonwealth and State or Territory Laws unless the occupation is exempt as requited by reg 2.73(13).

   ·The tasks of the position include a significant majority of the tasks specified in ANZSCO or the relevant instrument if there is no ANZSCO code; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO or the relevant instrument if there is no ANZSCO code; and, unless the occupation is exempt, the person is in the person’s business, if they are or would be an overseas business sponsor, or, the position is in the person’s business or an associated entity’s business, as required by reg 2.73(14).

4. The application fee was paid by the applicant and there is nothing on the Department’s file to indicate that the nomination training contribution charge has not been paid. Therefore, the Tribunal is satisfied that the requirements of reg 2.73(5A) have been met.

5. For these reasons, the Tribunal is satisfied the requirements in reg 2.72(3) are met.

No adverse information known to Immigration

1. 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.

2. Having regard to the facts, matters and circumstances available to the Tribunal, the Tribunal is satisfied that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.

3. For these reasons, the requirements in 2.72 (4) are met.

Nominator is a standard business sponsor

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

2. The Tribunal finds that the applicant is a standard business sponsor pursuant to a valid sponsorship agreement for the period from 21 March 2022 to 21 March 2027, and that the application is for the Short-term stream for the nominee. For these reasons the requirements of reg 2.72(5) are met.

Payment of debt mentioned in s 140ZO

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

2. The Tribunal has no evidence before it that the person has any outstanding debt under s 140ZO.

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

Requirements for existing Subclass 457 or Subclass 482 visa holders

1. 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).

2. 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

1. 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, IMMI 19/048 The occupation must also apply to the nominee in accordance with the instrument.

2. The Tribunal has reviewed the application and finds that the nominated occupation is for a Subclass 482 (temporary skill shortage) visa in the short term stream. The Tribunal is satisfied that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument. In the circumstances of this case, the relevant instrument, IMMI 19/048, does not contain any applicability condition for the nominated occupation.

3. For these reasons the requirements of reg 2.72(8) are met.

Position must be genuine and full-time

1. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. 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.

2. Provided to the Tribunal was a signed employment agreement between the applicant and the nominee dated 14 October 2019 which indicated that the nominee would work a minimum of 38 hours a week on a salary of $65,000 per annum plus the superannuation guarantee.

3. The employment agreement also set out the duties to be undertaken by the nominee in the nominated occupation of Contract Administrator as follows:

   ·Prepare, interpret, maintain and review contracts of related services offered by Colbay Building Services Ply Ltd

   ·Developing, reviewing and negotiating variations to contracts and service agreements made available clients  of  Colbay Building Services Ply Ltd

   ·Managing paperwork associated with contracts and services provided, communicating with clients and their staff

   ·Preparing and reviewing reports concerning the organisation's activities

   ·Collecting and analysing data associated with the role and the operational procedures that could benefit the business operation

   ·Overseeing work by contractors and reporting on variations of work orders

   ·Responding to inquiries and resolving problems concerning contracts, services provided

4. The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the nominated occupation of Contract Administrators (511111). The tasks listed for the unit group Contract, Program and Project Administrators (5111) in the ANZSCO were as follows:

   ·developing, reviewing and negotiating variations to contracts, programs, projects and services

   ·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

   ·managing paperwork associated with contracts, programs, projects and services provided

   ·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

   ·advising senior management on matters requiring attention and implementing their decisions

   ·overseeing work by contractors and reporting on variations to work orders

   ·preparing and reviewing submissions and reports concerning the organisation's activities

   ·collecting and analysing data associated with projects undertaken, and reporting on project outcomes

   ·reviewing and arranging new office accommodation

5. ANZSCO also states that a Contract Administrator: “prepares, interprets, maintains, reviews and negotiates variations to contracts on behalf of an organisation”.

6. At the hearing Mr Nino stated that the nominee has been in the role of Contract Administrator since the beginning of the company and the wages she is receiving is around $2,540 a fortnight and the annual salary is around $65,000.

7. Subsequently the Tribunal was provided with a signed employment offer agreement between the applicant and the nominee dated 26 September 2023 which indicated that the nominee would be employed as a full time Contract Administrator on a salary of $80,000 per annum plus the superannuation guarantee.

8. At the hearing Mr Nino stated that the nominee is in charge of getting together contracts, payments, accounts and anything to do with administration. The nominee does everything to do with administration which is to do with contracts and quotes. The nominee helps prepare the quotes then emails them to the clients.

9. The Tribunal referred to the summary of recruitment efforts provided to Department and that there were 17 applicants in response to the advertisement on Seek.com and 7 responses to the advertisements on Career.com. Mr Nino stated that he does not have copies of the applications. The Tribunal referred to needing to be satisfied that the position is genuine. The issues in the question of language and other is money as you would trust someone you know rather than someone from outside.

10. At the hearing the nominee stated that she put together the specifications that are provided to her by her spouse, she sends and receives emails, she is responsible for the payments, and she also does the accounts. She does everything to do with the administration. The Tribunal asked what she did in relation to the agreements or contracts between her and the applicant’s clients and the nominee stated that she sends the clients a quote and if the value of the quote is accepted then she sends them a purchase order. Depending on the contract and client, the client will need documentation and those documents consist of insurance, workers compensation, and all documentation for the contracts are properly signed and completed. The Tribunal asked if she did anything more and the nominee stated no it covers most of the administration, the nominee send the client all the information about the requirements the client has and if all in order and agreed the applicant goes ahead with the job.

11. At the hearing the Tribunal asked if the contracts vary between clients and the nominee confirmed that they do as they have different clients.  The nominee confirmed that there are variations. The majority of the work is commercial but there is a residential component.

12. At the hearing the Tribunal asked how she monitored the progress of the project against the contract and the nominee stated that it depends on the work to be carried out. And her spouse will tell her the percentage that needs to be charged this time. The percentage is how much work has been done and what is due. The Tribunal asked who negotiates variations to the contract and the nominee stated that her spouse does as he is on site and is involved in the work. The Tribunal asked who resolves contractual disputes and the nominee stated that these are resolved by her spouse. At the hearing the Tribunal asked if the contracts are standard or if she develops new contracts each time and the nominee stated that they are basically standard and is based on the purchase order the client sends the applicant. The nominee stated that it is quite some time ago since they reviewed the standard contract.

13. At the hearing the Tribunal asked if the nominee evaluated potential risks and labilities and the nominee stated no. The Tribunal asked who takes the responsibility for dealing with the client when there had been issues with meeting milestones on the project and the nominee stated that that part is handled by her spouse as she is onsite and doing the job. The nominee stated that this is only in the office doing the administration and paperwork. At the hearing the Tribunal asked if the nominee reviewed their processes and systems to see if they can be streamed lined or enhanced. The Tribunal clarified that it was speaking about management processes, templates and workflows. The nominee stated that she does, and a recent example is the documentation in relation to safety in the workplace as some clients do not need the forms. She manages the templates in relation to safety in the workplace to comply with all requirements. For example, now the applicant is not allowed to use steps that do not have spaced platforms, so the template has to be changed accordingly. The nominee confirmed that she is speaking about changing work safety processes and procedures.

14. At the hearing the Tribunal asked if there have been enhancements or streamlining of contracts or variations. The nominee stated that a contract is for a certain amount of money and then onsite it may be found that something needs to be added such as an additional installation or a demolition, so the variation occurs when something extra has to be done. The nominee confirms that her spouse negotiates those changes. The nominee stated that the applicant’s processes and procedures have not been updated recently.

15. Subsequently the Tribunal was provided with a further representative’s submission which confirmed the applicant’s tasks in the position of Contract Administrator as follows:

    ·     Ensure all deadlines and conditions described on contracts are met. (e.g. Payments, progress claims)

    ·     Maintain and organize a system of physical and digital records.

    ·     Bookkeeping tasks and other finance-related responsibilities

    ·     Liaising with project managers and other subcontractors to meet project requirements, quotes or answer general RFI's (Request for information)

    ·     Preparing documents, communications and WHS documentation on behalf of the company

    ·     Processing expenses, claims and tracking receipts, filing documents, records management and bookkeeping.

    ·     Check with onsite team progress of contracts.

    ·     Respond to enquiries regarding contracts.

    ·     Resolve problems which may incur during undertaking of contracts

16. Some of the tasks performed by the nominee are more aligned with office management, however, there are sufficient tasks that align with those of the nominated occupation. This particularly includes ensuring deadlines and conditions are met; liaising with project managers, subcontractors to endure project requirements including the quotes are met as well as document preparation and resolving problems.

17. The Department was concerned that as the nominee was the spouse of the director of the company, that the application was to facilitate the grant of a visa for a family member. However, the Tribunal is satisfied that the applicant is performing task of a Contract Administrator.Further, as discussed in detail below, the applicant met the labour market testing requirements. Advertisements were place on Seek.com from 5 September 2019 to 5 October 2019, there were 17 applicants and on Careerone.com from 10 September 2019 to 10 October 2019, there were 7 applicants. The applicant stated in the summary of recruitment efforts that the applicants were not hired as they were not Australian citizens or permanent residents; those who had the required qualifications did not have the required work experience; or they were without qualifications or work experience. Subsequently, the Tribunal was provided with 12 resumes or letters from the applicants who responded to the advertisements which support the applicant’s statements in the summary of recruitment efforts.

1. As the applicant performs most of the task of the nominated occupation and due to the efforts made by the applicant to employ a Contracts Administrator, the Tribunal is satisfied that the position of Contract Administrator associated with the nominated occupation is genuine.

2. Also provided were a payslip dated 13 September 2023 and the nominee’s Income tax Reports and Notices of Assessment for the tax years ending 30 June 2020, 2021, 2022 and 2023.

3. On the basis of the signed employment offer dated 26 September 2023, the nominee’s Income Tax Returns and Notices of assessment and the evidence at hearing, the Tribunal is satisfied that the position is full-time.

4. For these reasons the requirements of reg 2.72(10) are met.

Employment under contract

1. 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 instrument IMMI 19/212. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.

2. The applicant is not an overseas business sponsor as the business is located in Picnic Point, NSW. Further, as referred to above the applicant provided to the Department and Tribunal the signed employment agreement dated 14 October 2019. Subsequently provided to the Tribunal was the employment offer dated 26 September 2023.

3. For these reasons the requirements of reg 2.72(11) met.

Annual earnings

1. 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 18/023. 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 instrument 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 IMMI18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 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).

2. The Tribunal was provided with a signed employment offer dated 26 September 2023 which indicated that the contract was for the position of Contractor was full time and the annual salary was $80,000 per annum plus the superannuation guarantee.

3. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

4. From the organisational chart the Tribunal is satisfied that there is no Australian equivalent worker in the same position as the nominee. From the job description and the evidence in relation to Fair Work instruments, the Tribunal is satisfied that there is no fair work instrument, state industrial instrument or transitional instrument applicable to the nominated occupation of Contract Administrator. Therefore, as required by cl. 8 of the relevant instrument the annual earnings that would apply to an equivalent Australian worker, must be determined by reference to relevant information.

5. ‘Relevant information’ is defined in the relevant instrument as follows:

   Relevant information may include, but is not limited to:

   (a) information published on the Australian Government’s Job Outlook website;

   (b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;

   (c) written advice from registered employer associations and/or unions;

   (d) remuneration surveys generated across the relevant industry by a reputable organisation or body.

6. At the hearing the Tribunal advised the market salary information before the Tribunal is either not up to date or not equivalent as it refers to a junior position.

7. Subsequently provided to the Tribunal were a number of advertisements from Seek, Indeed and Jora website which indicated that the range of annual salaries for a Contract Administrator were from $65,000 to $90,000. The Tribunal obtained a copy of a market salary survey from Payscale.com, a remuneration survey generated across the relevant industry by a reputable organisation or body. The market salary survey indicated that the range of annul salaries for a Contract Administrator in Sydney was from $51,000 to $119,000with the median being $77,059 per annum.

8. On the evidence the Tribunal is satisfied the rate is $80,000 and it has been determined by the applicant in accordance with the relevant instrument. Further, the Tribunal is satisfied that the applicant’s annual earnings of $80,000 is not less than the TSMIT and not less than the annual market salary rate or the occupation of Mechanical Engineer. For these reasons the requirements of reg 2.72(15)(c), (d) (e)and (f) are met.

9. There is no information on the Departmental or Tribunal files that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

10. Given the above findings, the Tribunal is satisfied that reg 5.19(9)(h) is met.

Employment conditions

1. 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.

2. The Tribunal has considered the information and evidence provided to the Department and Tribunal, including the employment contract dated 14 October 2019 and the employment offer dated 26 September 2023. There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. For these reasons the requirements of reg 2.72(18)(a) are met.

3. Further, there is no information before the Tribunal which indicates that the applicant has engaged in any discriminatory recruitment practices. For these reasons the requirements of reg 2.72(18)(b) are met.

Labour Market Testing

1. 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).

2. 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 IMI 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.

3. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.

4. The Tribunal is satisfied that the LMT condition applies to the applicant and is not inconsistent with any international trade obligation to require the applicant to satisfy labour market testing as specified in the relevant legislative instrument: LIN 21/075.

5. The applicant is not exempt from satisfying the LMT condition by s 140GBB – Major Disaster Exemption, as the Minister has made no such exemption in this case. Further, the nominated occupation is not specified in the relevant instrument IMMI 18/036, therefore, the applicant is not exempt from satisfying the labour market testing condition: s 140GBC.

6. The period during within which LMT is required is the 4 months ending on the day on which the nomination application was lodged. In the circumstances of this review that is 19 July 2019 to 19 November 2019.

7. Provided to the Department with the visa application were the following:

   ·A invoice dated 9 September 2019 for an advertisement on Careerone in the sum of $203.50.

   ·A receipt dated 5 September 2019 for an advertisement on Seek.com entitled Contract Administrator in the sum of $313.50. Also provided was a copy of the advertisement dated 5 September 2019.

8. Also provided to the Department was a summary of recruitment which indicated that advertisements were place on:

   ·Seek.com from 5 September 2019 to 5 October 2019, there were 17 applicants, but none were hired.

   ·Careerone.com from 10 September 2019 to 10 October 2019, there were 7 applicants, but none were hired.

9. The recruitment summary stated that the applicants were not hired as: they were not Australian citizens or permanent residents; those who had the required qualifications did not have the required work experience; or they were without qualifications or work experience.

10. The advertisements were placed for at least 28 days within the relevant 4 month period and were in English and contained the title of the position, the skills and experience required, the name of the approved sponsor and the salary.  On the evidence, the Tribunal is satisfied that the application was accompanied by evidence that the applicant undertook LMT as set out in the relevant legislative instrument. There was no information or evidence that there were any retrenchments or redundancies from the applicant.

11. For these reasons, the labour market testing requirements in s 140GBA are met.

Nomination training contribution charge

1. 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).

2. There is no information or evidence that indicates that the applicant has not paid the nomination training contribution. For these reasons the requirements of s 140GB(2)(aa) are met.

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

DECISION

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

Namoi Dougall
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.

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

2. 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.

3. 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.

1. 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.

1. 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.

2. 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.

3. 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.

4. 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.

1. 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.

2. 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.

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

4. 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.

1. 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.

2. 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.

3. 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.

4. 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.

5. …