Dasalla, Efraim Bentero (Migration)

Dasalla, Efraim Bentero (Migration) [2020] AATA 4211 (22 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dasalla, Efraim Bentero
CASE NUMBER:  1732706
HOME AFFAIRS REFERENCE(S):          BCC2017/2523055
MEMBER:Mr S Norman
DATE:22 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 22 September 2020 at 2:32pm
CATCHWORDS
MIGRATION – nomination of occupation – genuine position – nominee brother of director of nominating business – other family members associated with business – increase in demand and need for position – nominee highly qualified – labour market testing – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 December 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations). The Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 16 July 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) of the Regulations (Position must be genuine).
The applicant/nominator appeared before the Tribunal on 2 September 2020, to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant/nominee (Mr Emmanuel Jr Bentero Dasalla). The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
On 16 July 2017, the applicant/nominator (Dasalla, Efraim Bentero) lodged a nomination application; the nominated occupation was for a Residential Care Officer (ANZSCO: 411715); the associated visa applicant/nominee was Emmanuel Jr Bentero DASALLA; and the base rate of pay per annum was $55,000 (offer of employment letter dated March 2017). The proposed period of employment was 24 months (38 hours per week[1]).
[1] Nomination application – p.5.
The applicant had also lodged numerous evidence and submissions. While all the evidence and submissions have not been referred to herein, all have been considered prior to drafting this decision.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
Based on the information before the Tribunal, I find the applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a); the applicant identified in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b); the nomination was made using the approved form and fee - r.2.73(2), (3), (5) & (9); the applicant provided the certification as to whether or not the person engaged in conduct that constitutes a contravention of s.245AR(1)[2] of the Act: r.2.73(4B); and the nomination includes the location/s at which the occupation will be carried out, and the name and/or 6 digit ANZSCO code as the applicant is a standard business sponsor; as well as the relevant certifications mentioned in r.2.72(10) or r.2.72(11): r.2.73(4)/(4A).
[2] DIAC – p.158 (‘DIAC’ refers to the scanned Department file in the Case File of the Tribunal’s CASEMATE database).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Based on the information before the Tribunal, I accept the applicant is a standard business sponsor (sponsorship TRN: EGOD951KXA).
For these reasons the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
The applicant has identified in the nomination the proposed applicant for the visa who will work in the nominated occupation.
For these reasons the requirements of r.2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
In the nomination application, the applicant said the visa applicant/nominee did not already hold a Subclass 457 visa.[3] At hearing it was explained the visa applicant was presently in Australia on a Bridging visa (without work rights), and that he had never held a Subclass 457 visa. Be that as it may, the applicant did lodge the following:
[3] Nomination application – p.7.
·     Migration agent letter dated 27 July 2020 claiming the visa applicant had obtained further qualifications in recent times and is now a Registered Nurse (Division 1), awarded by the Nursing and Midwifery Board of Australia
·     PTE Academic Score Report issued 18 June 2020:
·     Listening – 70
·     Reading     – 77
·     Speaking   – 81
·     Writing      – 72
·     Overall     – 73
·     IELTS Test Report Form dated 5 March 2016:
·     Listening – 6
·     Reading    – 5.5
·     Writing      – 6
·     Speaking   – 6
·     Overall      – 6
·     Curriculum vitae - indicating the visa applicant had experience as a nurse, and that he had obtained a Bachelor of Science in Nursing / a Masters of Arts in Nursing (major in Medical Surgical Nursing) / Graduate Certificate in Nursing Bridging and Re-entry course in Australia (registered for the period 19 June 2020 to 31 May 2021). It was also claimed the visa applicant had been involved in the publishing of papers relating to the work of the position
However, as the visa applicant/nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one – Residential Care Officer (ANZSCO: 411715)
·the location at which the nominated occupation is to be carried out – Burwood, NSW[4] (at hearing, the applicant explained the ‘head office’ of the business had more recently moved to Ashfield NSW, and that is where the visa applicant would be deployed from)
[4] Nomination application – p.5.
For these reasons the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
In the nomination application, the applicant certified in writing they had not engaged in conduct, in relation to the nomination, that constituted a contravention of s.245AR(1) of the Act.[5]
[5] Nomination application – p.10.
For these reasons the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal has no evidence of any adverse information known to Immigration about the applicant or a person associated with the applicant.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal accepts the nominated occupation (Residential Care Officer - ANZSCO: 411715), corresponds to an occupation and 6-digit code in a specified instrument. Based on the evidence on the applicant’s and visa applicant’s files, material parts of which have been set out herein, the Tribunal also accepts the occupation is applicable to the person identified. For these reasons the requirements of r.2.72(10)(aa) are met.
There is no requirement for the nomination to be supported by a specified organisation. For these reasons the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA). The instrument relevantly stated (in part):
(1) If there is a fair work instrument, state industrial instrument or transitional instrument that applies or would apply to Australian citizens or Australian permanent residents in the same workplace at the same location and would apply to the person identified in the nomination, then the terms and conditions of employment set out in that instrument are the terms and conditions that would be provided to an Australian citizen or Australian permanent resident to perform equivalent work.
…..
(2) If subitem 2(1) does not apply, the terms and conditions of employment that would apply to Australian citizens and Australian permanent residents to perform equivalent work in the same workplace in the same location must be determined with regard to relevant information.
The requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10AB). The instrument relevantly stated:
3. SPECIFY, for the purposes of subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of the Regulations, annual earnings of AUD 250,000
With the Department and Tribunal, the applicant advised that the base rate of pay per annum was $55,000 (offer of employment letter dated March 2017). The applicant also lodged evidence of Market Rates for Residential Care Officers in Sydney[6] (indicating full-time earnings of $1156 per week). Based on the evidence considered, and in the absence of material contrary evidence, the nominee’s terms and conditions are no less favourable than those for the relevant Australian equivalent.
[6] DIAC – p.96.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028. The instrument relevantly stated:
2. SPECIFY, for the purposes of paragraph 2.72(10)(cc) of the Regulations, that the temporary skilled migration income threshold is AUD 53,900
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB). The instrument relevantly stated:
3. SPECIFY, for the purposes of subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of the Regulations, annual earnings of AUD 250,000
The base rate of pay per annum for the visa applicant was said to be $55,000. The applicant provided comparative evidence of weekly earnings (including by reference to material websites) before tax. The evidence included:
· Welfare Support Workers – $1200 per week before tax
· all occupations – $1156 per week before tax
The annual earnings are therefore less than those specified for r.2.72(10AB); but greater than the income threshold specified in the instrument for r.2.72(10(cc).
For these reasons the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060 - yes[7]
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067 - yes[8]
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO - yes[9]
[7] Nomination application – p. 9.
[8] Nomination application – p. 9.
[9] Nomination application – p. 9.
For these reasons the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
In their decision the delegate noted the intent of the Subclass 457 visa program is to enable Australian businesses to temporarily fill short-term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program was not intended to be used in order to enable noncitizens to establish a business in Australia and then sponsor themselves, or to create a migration outcome for friends or family members who wish to live in Australia.
On 23 October 2017, the delegate had requested the applicant provide further evidence to show the nominated occupation was genuine. The delegate subsequently stated that based on the evidence before them, it appeared the nominee was related to the owner or Director of the nominating business (Dasalla, Efraim Bentero t/a TLC Nursing Agency). The delegate noted the nomination application stated the nominee had an existing relationship with the owners, Directors or principals of the applicant’s business and the nominee is the brother of the Director of the business. The applicant did however claim the position had not been created solely to secure a migration outcome for the nominee.
The delegate then considered the ASIC historical statement, which showed the business name was TLC Nursing Agency, that the business name holder was Efraim Bentero Dasalla, that the holder type was Proprietor, and the residential address was [Address]. The delegate also noted the nominee’s contact details provided in the application was also the same as the principal place of the business address.
In the circumstances of this case, the delegate was not satisfied the information established that there was a genuine skill shortage, but rather they believed the application was to facilitate a migration outcome for the nominee. The delegate went on to find the applicant had not satisfied r.2.72(10)(f); or r.2.72(10). The delegate went on to refuse the nomination application lodged by Dasalla, Efraim Bentero.
With the Department, the applicant had lodged evidence of the wages for employees in 2014, 2015, 2016 and 2017 (over 55 employees for 2017). By accountant letter dated 14 March 2017, it was stated (in part):
The total wages paid to employees in last 12 months is $1,634,299.00.
The total superannuation paid to employees in the last 12 months is $ 163,97359
By s.359(2) letter dated 16 July 2020 (emailed to the authorised recipient), the Tribunal also invited the applicant to lodge further information in support of the nomination.
With the Tribunal, the applicant lodged an organisation chart indicating the visa applicant’s brother was the applicant’s CEO, two other family members as Directors; one family member as an operations manager; an accounts finance manager; a marketing manager; an accounts payroll assistant; an admin assistant; a HR assistant; a registered nurse; an endorsed and enrolled nurse employee; an assistant in nursing; and a support worker.

In the nomination application, the applicant advised that the business annual turnover at time of lodgement (16 July 2017) was $2,000,000.[10] It was also claimed the applicant then employed 33 Australian citizens/permanent residents and 4 foreign employees (all overseas students[11]). It was also claimed that no other person was engaged doing the same work as the nominated person (being the visa applicant).[12]
[10] Nomination application – p.1.
[11] Nomination application – p.6.
[12] Nomination application – p.6.
With the Department the applicant also lodged a range of Activity Statements, photographs of the applicant’s business, evidence of charitable undertakings of the applicant’s business, a range of other evidence and a document titled Company Profile. That stated (in part) that the applicant business:
… is a professional nursing agency for medical health and disability fields. The agency staff are experiencing wide range of healthcare both in hospital, group homes, aged care and disability care management.
At hearing, the applicant explained the business placed nurses and other health care workers in various hospitals, care homes etc, as required. In the past financial year, the applicant’s business engaged over 200 health care workers (principally nurses) for work in other business.
The applicant also said the tasks for the nominated occupation of Residential Care Officer (included but was not limited to):
·     providing direct support to aged, illness and disabled clients on a day-to-day basis
·     assessing new residents as well as monitoring current residents
·     with resident’s approval, advocate on their behalf and refer residents to external community groups etc
·     monitor and report on progress of clients
·     lead and participate in the delivery of high standard of person-centred resident care
·     ensure the social, emotional spiritual and recreational needs of residents
·     ensure the families and living others are included in the care plan process
·     ensure open communication with medical officers and other staff
At hearing, the Tribunal noted the applicant and visa applicant were brothers. The applicant also said the visa applicant had worked on a voluntary basis with his business (for a few hours per week). The work the nominee undertook may relate to ‘paper work’ in the office (now at) Ashfield. It may also be related to minding the applicant’s children during (principally) work hours. For this, the applicant may subsidise the visa applicant’s rent (given the visa applicant held a Bridging visa without work rights).
In written submissions the applicant also said there had been an increase in clients and as a result there was ongoing need for the nominee to join the business on a full-time basis; relevant tasks of the nominee were then set out; it was also claimed the residential care Ofc was essential to ensure the business focused on delivering good quality service and best patient care; that the visa applicant had completed a Doctorate of Education with a major in Educational Management, a Masters in Nursing with a major in Medical – Surgical Nursing, and a Bachelor of Science in Nursing.[13]
[13] DIAC - p.94.
The Tribunal notes the applicant had provided evidence of advertising for the position for a 12-month period. Further, the evidence before the Tribunal indicated there continued to be a high demand for health care workers (particularly nurses[14]), and the Tribunal believed it plausible the applicant was not satisfied that any local suitable person could be found for the job (as claimed at hearing).
[14] THE NURSING SECTOR IS GROWING, AND SO ARE SALARIES, POSTED ON 17TH APRIL 2018, JAMES COOK UNIVERSITY, ACCESSED 2 SEPTEMBER 2020;
The Tribunal understands the Residential Care Officer pool was a small occupation group, and the number of persons who work in the position as their main job, continued to be a very small.[15] The Tribunal asked the applicant to provide evidence that there was a demand, and his business had a demand, for Residential Care Officers (evidence to be lodged by 16 September 2020 – though the Tribunal said it would consider a reasonable request for an extension), and upon the receipt of same the Tribunal would consider whether this supported the claim the position was genuine. In post hearing submissions, the applicant did provide further evidence and that has been discussed below.
[15] For instance, see Residential Care Officers, Australian Government Job Outlook, accessed 2 September 2020 (which information had been posted after the commencement of the COVID-19 pandemic).
Next, and prior to the hearing, the applicant also lodged the following with the Tribunal:
·     Company Statement - stating address and shareholders of the company
·     Australian Taxation Office, Business Portal, 23 July 2020 identifying PAYG Withholding the 2019/2020 calendar year
·     Activity Statements (amongst others):
·     July 2019 – total salaries, wages and other payments $353,686
·     August 2019 – total salaries, wages and other payments $477,873
·     October 2019 – total salaries, wages and other payments $418,827
·     November 2019 – total salaries, wages and other payments $418,764
·     July to September 2019 – total sales $1,264,641 / total salary, wages and other payments $400,420
·     October to December 2019 – total sales $2,192,784 / total salary wages and other payments $547,740
·     January to March 2020 – total sales $1,522,202 / total salary wages and other payments $591,150
At hearing, the Tribunal noted that it may not have sufficient financial information to satisfy it that the applicant business had the capacity to pay the visa applicant the nominated salary. The Tribunal noted the evidence lodged appeared to focus on ‘gross’ figures of business turnover. The Tribunal suggested the applicant might lodge verified evidence of net profit for the 2018/2019 financial year; and to the extent possible, for the 2019/2020 financial year; or any other evidence they may wish in support of the case. This further evidence was to be lodged by 16 September 2020.
By migration agent email of 16 September 2020 (post hearing), the following was lodged:
·     Financial Statements for year ended 30 June 2019 (accountant advice dated 14 September 2020):
·     Net profit from ordinary activities before income tax for 2019 - $537,256
·     Salary 2019 - $3,113,426
·     Net profit from ordinary activities before income tax for 2018 $499,434
·     Salary 2018 - $2,708,644
·     Financial Statements for year ended 30 June 2020:
·Profit before income tax for 2020 - $292,312
·     Company bank statement (ANZ) dated 15 May 2020 to 15 June 2020 – opening balance $670,744.33 - closing balance $409,662.57
·     Company bank statement (ANZ) dated 15 June 2020 to 15 July 2020 – opening balance $409,662.57 – closing balance $545,944.45
·     Company bank statement (ANZ) dated 14 February 2020 to 13 March 2020 – opening balance $446,703.92 - closing balance $353,144.48
·     Company bank statement (ANZ) dated 13 March 2020 to 15 April 2020 - opening balance $353,144.48 - closing balance $398,000.86
·     Company bank statement (ANZ) dated 15 April 2020 to 15 May 2020 - opening balance $398,000.86 - closing balance $670,744.33
·     Company bank statement (ANZ) dated 15 July 2020 to 14 August 2020 – opening balance $545,944.45 - closing balance $620,378.12
and:
·     A document titled Comparative Trial Balance as at 30 June 2019 – which indicated net profit for 2019 as $537,256
Based on the financial information lodged, the Tribunal believes the applicant has the capacity to pay the nominated salary for the nominated position and this supports the claim the position associated with the nominated occupation is genuine. Further, and again based on the independent information referred to above, the Tribunal is satisfied there is a genuine and ongoing need for health care professionals (including Residential Care Officers), by both the applicant business, and within the healthcare industry.
Accordingly, and for these reasons, the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister.
With the Department was lodged an offer of employment (employment contract) dated March 2017 (signed and dated by the applicant and the visa applicant on 21 March 2017), which included reference to a salary of $55,000 per year.
For these reasons the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
The Tribunal has no evidence the nominated occupation is specified in a work agreement.
For these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. The instrument relevantly stated:
… for the purposes of subsection 140GBA(4) of the Act, that the period within which labour market testing is required in relation to a nominated occupation is twelve (12) months
In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
In the nomination application, and with the Department, the applicant lodged:
·     evidence of a job advertisement on 28 March 2017 in ‘seek.com’[16]
·     evidence of a job advertisement on 14 March 2017 in ‘seek.com’[17]
·     evidence of a job advertisement on 10 March 2017 in ‘seek.com’[18]
·     evidence of a job advertisement on 8 March 2017 in ‘seek.com’[19]
·     evidence of a job advertisement on 6 March 2017 in ‘seek.com’[20]
·     evidence of a job advertisement on 8 March 2017 in ‘seek.com’[21]
·     evidence of a job advertisement on 28 February 2016 in ‘seek.com’[22]
[16] DIAC – p.109.
[17] DIAC – p.104.
[18] DIAC – p.97.
[19] DIAC – p.98.
[20] DIAC – p.100.
[21] DIAC – p.98.
[22] DIAC – p.109.
Based on the evidence before it, the Tribunal is satisfied the labour market testing condition applies to the applicant. Further, that labour market testing was undertaken in the specified period: s.140GBA(3)(a); the nomination was accompanied by relevant evidence of the testing: s.140GBA(3)(b); and given the high demand for similar health care professionals, that there is no suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder not readily available to fill the nominated position (s.140GBA(3)(d)); and also that no Australians or permanent residents were made redundant/retrenched from the nominated occupation: s.140GBA(4A).
For these reasons, the labour market testing requirements in s.140GBA are met.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Mr S Norman

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

[2020] AATA 4211

22 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies