FCS Concrete Repairs Pty Ltd (Migration)

FCS Concrete Repairs Pty Ltd (Migration) [2023] AATA 4269 (15 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  FCS Concrete Repairs Pty Ltd
REPRESENTATIVE:  Mrs Lidia Soliman (MARN: 0747355)
CASE NUMBER:  2100866
HOME AFFAIRS REFERENCE(S):          BC2020/1367027
MEMBER:Alan McMurran
DATE:15 December 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 15 December 2023 at 10:09am

CATCHWORDS
MIGRATION – approval of a nomination – Medium-term stream – occupation of Civil Engineer – labour market testing – evidence of job advertisements – genuine position – updated financial information – tasks of the position – actively and lawfully operating a business in Australia – terms and conditions of employment no less favourable – decision under review set aside
LEGISLATION
Fair Work Act
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration Act 1958, ss 140, 245, 359
Migration Amendment (Skilling Australians Fund) Regulations 2018, cl 7602
Migration Regulations 1994, Schedule 2, cls 482.223, 482.232; rr 1.13, 2.57, 2.72, 2.73, 5.42
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 27 January 2021for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 2021 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).
The applicant nominator, FCS Concrete Repairs Pty Ltd, applied for approval on 15 April 2020. 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.
Delegate’s decision
In this case, the occupation of Civil Engineer (ANZSCO 233211), is for the nominee, Chaimae Chatmi, who is nominated for a Subclass 482 visa in the Medium-term stream. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s140GBA of the Act because the applicant had not satisfied the labour market testing condition.
This was because the available information showed the advertising did not contain the sponsor’s name, was for a “casual position”, and disclosed a significant difference between the advertised salary of AUD50,000 and the existing full-time role with a salary of AUD72,608. The delegate found the applicant had not genuinely tested the local labour market.
Tribunal process
The applicant lodged the nomination application with the Department at first instance without assistance or representation. The applicant was, however, represented for the review process in the Tribunal.
On 11 August 2023, the Tribunal sought information from the applicant under s 359 of the Act. The applicant’s then representative responded, following an extension of time, on 22 September 2023. The response attached documents and made submissions.
On 17 November 2023, following constitution of the matter, the Tribunal provided the applicant with a copy of a s376 non-disclosure certificate dated 1 February 2021 (“NDC”). The applicant was invited to comment. No response was received from the applicant.
The nominee, Ms Chaimae Chatmi, a citizen of the Kingdom of Morocco, has applied for the related Subclass 482 visa which has been refused. The nominee has sought review[1] of the visa refusal and remains on a Bridging visa pending the outcome. The decision in respect of the nominee is dealt with in the nominee’s Tribunal application and the nominee has been advised separately as to the outcome of her review.
[1] Tribunal case 2101299
The Tribunal conducted a combined review of this nomination application and the related visa application. The applicant appeared by its director, Tony Saba (“the director”), in a 2-hour video hearing before the Tribunal on 14 December 2023, to give evidence and present arguments. The Tribunal also received oral evidence from the nominee who attended, and from a third witness, Mr Penfold, who is a chartered accountant and independent management consultant.
The representative appeared for both applicants and made submissions. The parties indicated they were ready to proceed, did not object to the video format and no interpreter was required. No issues were raised with the Tribunal concerning the hearing and all attending could see and hear each other without difficulty during the hearing process.
The director indicated he was ready and willing to proceed as scheduled.
Tribunal decision
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
NDC – S 376 CERTIFICATE – Relevance
Section 376 provides that where the Minister has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than for a reason set out in s375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding), that the matter contained in the document, or the information, should not be disclosed.
The section further provides that where the Tribunal is given a document or information and is notified that this section applies in relation to it, it may have regard to any matter, document or information so provided, and may if it thinks appropriate, disclose any such matter, document or information to the applicant or any other person who has given oral or written evidence to the Tribunal, and which would include the nominee in this instance.
The Tribunal has reviewed the NDC and the information provided. The NDC is dated 1 February 2021 and has been signed appropriately (meaning in person) by the delegate. The Tribunal is satisfied that the certificate is valid because the delegate determined that the information should not be disclosed in the public interest so as to protect the anonymity of the informant.
At the hearing, the director said he had seen the certificate but did not know what it was about as there was no information disclosed. The new representative, who was only recently appointed just before the hearing, had not seen it.
The Tribunal informed the director that the gist of the information disclosed (there were no documents) was what is euphemistically called “a dob-in”. He was told that there was anonymised information from a third party that the applicant was misusing the migration programme to employ cheaper backpacker labour.
The director responded that was not the case and that he was unaware of any alleged breaches of visa regulations applying to backpackers, or where the applicant was claimed to have extended temporary visa holders’ work opportunities for mutual benefit. He said the applicant has been established since 2014, but that he had been working in the concrete industry since 1980 and that in that time he had started other businesses. He said he had a holding company, AM & MG Holdings and another entity styled FTS Remedial which is not yet operating. He had a third entity, FTS Equipment which works as a related entity with the applicant’s concreting business. He thought the information, which he refuted, may have come from a disgruntled former employee or trade competitor or someone unknown, as in the construction industry over such a long period, he had come across many people. He said to his knowledge, he had received no complaint from the Department, no one else had complained to him, and he was generally well-liked by his staff.
The Tribunal considered the responses and the lack of detail in the information, the fact it was anonymised, and referred to claimed issues arising more than 5 years ago (allegedly in 2018). There has been no apparent investigation or follow up by the Department and the Tribunal is not aware that there is any adverse interest in the applicant, which has had its sponsorship agreement renewed, notwithstanding the anonymous reported information.
The Tribunal finds that the certificate will not be treated as providing adverse information in the context of this review, is not relevant to the issues before the Tribunal for the nomination application currently being reviewed, and carries no weight in the Tribunal’s considerations.
Background and Issues
The applicant carries on business as a contractor in the construction industry, repairing and remediating concrete constructions in commercial developments, such as renovated shopping centre developments, infrastructure for local councils, and other works of a significant nature such as bridges, roadworks, and developments involving concrete remediation. Clients include Sydney Water, Chatswood Chase, Richard Crooks, Mettle (Qld builder), Baulkham Hills Shire, Ryde and Gosford councils and aquatic engineers involved with swimming pool construction and concrete structures for water containment.
The applicant commenced in 2014 and the director is the principal and manager. He has a personal history of more than 40 years’ experience in concrete construction. The nominee for her part is 33 years old from Morocco but who has also studied and worked in Malaysia and where she was professionally qualified.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, and the recent submissions from the representative. The information includes material which was not before the Department.
The Tribunal has also had regard to the Act and the Regulations[2], relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines.
[2] S140GB and reg 2.72
A large amount of information has been submitted by the applicant including in response to Tribunal requests and invitations to respond. The Tribunal has had regard to all of the information and documentation made available together with the oral evidence and which is referred to where relevant in these reasons.
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 reg 2.73.
On the available information, the Tribunal is satisfied the applicant is nominating an occupation[3] and the corresponding 6 digit code under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Medium-term stream[4]. The nominee is nominated to work in the nominated occupation.
[3] Civil Engineer ANZSCO 233211
[4] LIN19/048 commenced 11 March 2019; for occupations on or after 11 March 2019, this includes Civil Engineer 233211.The occupation is not subject to any applicable conditions.
The Tribunal is satisfied from the Departmental information that the application was made on the approved form, and the fee paid together with the nomination training contribution charge applicable and collected from the applicant at the time of lodgement, which is in accordance with the current requirements for payment of the fee and as assessed by the Department accordingly.
The nomination includes the proposed period of stay for a visa granted on the basis of the nomination (4 years in this case), and the applicant’s annual turnover, as submitted for the then financial period in a range from AUD1 million to less than AUD2 million as at the time of application.
The Tribunal finds that the application identifies the applicant as a standard business sponsor for the 5-year period from 16 August 2021 until 16 August 2026 and includes the following certifications:
a.the relevant 6-digit occupation code, Civil Engineer 233211, with the name of the occupation, identifying the nominee in the nomination.
b.the principal location for the business is located at Gladesville, Sydney, NSW. The occupation is carried out at various work site locations in the Sydney region and at the applicant’s office.
c.the applicant’s turnover, estimated at the time of application FYE 2019/2020 at more than AUD1 million but less than AUD2 million.
d.the applicant has not engaged in conduct that contravenes s 245AR (1) of the Act relating to paying for visa sponsorship or a sponsorship-related event.
e.the applicant’s provided 2019 employment contract. The contract is a standard form employment agreement which complies with Commonwealth, and State employment laws. It has been updated for this review in August 2023.
f.the nominator’s certification states the tasks of the nominated occupation include a significant majority of the tasks specified for the occupation of Civil Engineer 233211, and the qualifications and experience of the nominee are commensurate with those specified for the occupation in accordance with the relevant instrument. [5] The occupation is not exempted from any additional requirements as specified in accordance with the relevant instrument.[6]
[5] IMMI 19/048
[6] IMMI 18/035
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
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.
The Tribunal has referred to the NDC above which it finds is reasonable to disregard as the content is not relevant to the considerations for this nomination and for the nominee.
The Tribunal finds there is currently no adverse information known to the Department or the Tribunal about the applicant or a person associated with the applicant.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
Department records have confirmed that the applicant is a standard business sponsor for the period from 16 August 2021 until 16 August 2026.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no information before the Tribunal that the applicant has any outstanding debt under s140ZO of the Act, and which has not been paid in full.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
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).
The nominee is not the holder of a Subclass 457 or Subclass 482 visa and there are no current family members of the nominee who hold a Subclass 457 or Subclass 482 visa as a family member of the nominee.
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
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, LIN19/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds on the available information and by reference to the relevant instrument that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument. There are no conditions specified in the relevant instrument for the occupation which might render it inapplicable for the nomination.
For these reasons the requirements of reg 2.72(8) are met
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is 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. The Tribunal finds that there is no issue nor any evidence before it to the effect that the position in this instance is not full-time. The employment agreement and submission from the applicant, together with the evidence from the nominee, confirm the employment is full time and which the Tribunal accepts.
Is the position ‘genuine’?
There is no specified definition of ‘genuine’ in the Act or Regulations .
The phrase needs to be considered in the context and on the facts arising in any particular case. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30 (“Cargo”), 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. In this instance, the Tribunal finds that the evidence clearly demonstrates that the position is fulltime, for 38 hours per week minimum , plus overtime and conducted at the applicant’s principal place of business at Gladesville in Sydney.
It is appropriate when considering a genuine position to review the current business practices of the applicant, its scope and scale, financial position, the staffing composition, and the specific duties performed by the nominee. All of these considerations may be relevant and are open to interpretation on the available objective material and in the particular business context.
The Tribunal has paid particular attention to the description of the role in the business context, the size and scale of the organisation and its activities, and the nominee’s employment background, and her oral evidence. The Tribunal gives considerable weight to that evidence, supported by the written submission and employment history for the nominee as presented both in this application and in the application for the visa by the nominee.
The financial information provided and which includes current BAS reports as at June 2023, demonstrates the scale and context of the business. It is a relatively small business operation working exclusively in concrete repair and construction, with approximately15 employees, including the director. The information shows that the nominee has been paid a wage in accordance with the nominator’s employment obligations and at the agreed salary rate for the occupation.

The director has provided a lengthy and detailed submission[7] on the size and context of the business, its profile and the nominated role. The director refers to the need for the nominee in his business operation and has evidenced the applicant’s financial capacity, organisational structure and intent to develop and grow the business, and where the skills of a civil engineer are integral to its operations. The Tribunal accepts that information.
[7] Applicant’s submission at par 5 of written submissions made 22 September 2023
ANZSCO describes the role for engineers as follows:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Registration or licensing may be required.
Tasks Include:
- determining construction methods, materials and quality standards, and drafting and interpreting specifications, drawings, plans, construction methods and procedures
- organising and directing site labour and the delivery of construction materials, plant and equipment, and establishing detailed programs for the coordination of site activities
- obtaining soil and rock samples at different depths across sites and testing samples to determine strength, compressibility and other factors that affect the behaviour of soil and rock when a structure is imposed and determining the safe loading for the soil
- studying architectural and engineering drawings and specifications to estimate total costs, and preparing detailed cost plans and estimates as tools to assist in budgetary control
- monitoring changes to designs, assessing effects on cost, and measuring, valuing and negotiating variations to designs
- analysing structural systems for both static and dynamic loads
- designing structures to ensure they do not collapse, bend, twist or vibrate in undesirable ways
- assessing present and future travel flow patterns taking into account population increase and needs change
- designing the physical aspects of transportation systems such as highways, railroads, urban transit, air transportation, logistical supply systems and their terminals
The nominee has produced evidence of her qualifications, which includes membership of the Australian Institute of Engineers.
The Tribunal has listened carefully to the evidence from the nominee, describing her daily routine and tasks which substantially align with ANZSCO and is satisfied that the nominee is performing the majority of the tasks as described and submitted with the Department’s application, and which the Tribunal has noted is a full-time position.
The Tribunal finds that there is no issue before it that the occupation nominated and the related position for the nominee is not ‘genuine’ in the Cargo sense.
For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
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 IMMI18/035.
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.
Furthermore, the nominated occupation is not exempt from the requirement.
The Tribunal finds on the available information that the applicant has submitted a written contract of employment as at July 2019 on her commencement[8], updated and as stated, signed by the nominee and the applicant. A copy of the agreement updated in August 2023 is referred to in the evidence[9] and accepted as current.
[8] Applicant’s submission at par 5 of written submissions made 22 September 2023
[9] Ibid at p3 of the summary.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
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 IMMI18/033.
Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI IMMI18/033 , being $53,900 at the time of application (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).
As the annual earnings in relation to the occupation will not be at least the specified amount ($250,000.00), the requirements of reg 2.72(15) must be met.
The annual earnings for the occupation nominated must be determined in accordance with the relevant instrument. This provides at Part 3 the method for determining the annual market salary rate (“AMSR”) where an Australian worker is performing equivalent work.
The applicant must have regard to a relevant fair work instrument, State industrial instrument or transitional instrument applicable to an Australian worker employed in the same workplace, at the same location and performing equivalent work.
In this instance, according to the Fair Work Ombudsman (Cth), the relevant instrument for calculating the minimum entitlements for employed engineers is the Professional Employees Award.[10] The Award provides relevant pay grades and states that the premium hourly rate for a Grade 1 Civil Engineer is $32.34ph. This equates to a minimum weekly salary of $1,228.92 before allowances or overtime, annualised at $63,903.84.
[10] Noted as instrument MA000065
The evidence is and the Tribunal accepts that the nominee is now an experienced civil engineer having learned and performed the role since 2019, and is entitled to the higher rate allowance than an engineer starting out in the role. The Award further does not prevent the nominator and the nominee from negotiating a higher rate and the nominee receiving in excess of $32.34ph. This might also be required where the current market rate is in excess of the Award, due to market conditions, and where as the director said in evidence words to the effect, it is necessary to pay a market rate or above “to keep the employee”.
The Tribunal must consider the information available at the time of its decision. That information has been updated for the purpose of this review with submissions made 22 September 2023.
There was no other equivalent employee with the nominator in 2020 at the time of application. Much has changed in the employment market for skilled trades workers since 2020, as submitted by the director, and due to the impact of the continuing pandemic in 2021, when the applicant ceased trading for a period of approximately 3 months. The Tribunal accepts that there remains a skill shortage for construction professionals (as well as trades) in Australia which is well-publicised and accepted. The applicant’s financial statements show an uptick in business performance since 2022, and in 2023, which is continuing in that trajectory, and where the director asserts turnover will reach $2.6 million for FYE 2023.
The applicant has supported the current AMSR with evidence from job advertisements for similar roles and a remuneration survey from Hays research[11]. The applicant submits that the nominated salary was advertised correctly and in a range, to reflect similar advertisements at the time. A range further allows for responses from candidates at differing skill levels. The range submitted aligns with the advertising argued for by the applicant as within the appropriate range for the role, and between $50,000 - $70,000pa, at the time of application (2020) or hourly rate equivalent from around $28 upwards to $38.25 ph. The applicant’s advertising aligns with similar advertising industry-wide and locally within NSW and the nominated location for the work. It also reflects minimum entitlements for a fresh graduate around $50k per annul upwards to $70k for someone with limited experience.
[11] Hays Salary Guide Australia
The Tribunal on its own inquiry with work site internet platforms and from the FWA’S calculator, P.A.C.T., notes the ‘average’ salary for a civil engineer may vary from as little as $50,000 - $60,000.00 for someone starting out, upwards to $95,000.00 or above, for more experienced employed civil engineers. P.A.C.T. calculates a top hourly rate of $29.97 per hour excluding overtime or other allowances which equates to a graduate engineer earning $59,220.72 on commencement, excluding allowances and / or overtime.
The applicant submits, and the Tribunal accepts the base salary for a graduate engineer (with little or no experinece) and at the time of application, might start between $50-$60k. This was within the range as advertised for the position in January 2020. A more experienced candidate might expect between $60-$80k on commencement.
The Tribunal finds that the application demonstrates to the Tribunal’s satisfaction that the annual market salary rate for the occupation has been correctly determined by the applicant by reference to instrument IMMI18/033, and that the earnings for the nominee are what 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.
For these reasons the requirements of reg 2.72(15)(c) are met.
The Tribunal further finds that the rate for the occupation is not less than the TSMIT threshold of $53,900 specified in IMMI 18/033.
For this reason the requirements of reg 2.72(15)(d) are met.
For the reasons given above and relying upon the provided industry and occupation evidence for the occupation of Civil Engineer, the Tribunal is satisfied that the requirements in the legislative instrument 18/033, as to the method of determination of the annual market salary rate have been followed.
For these reasons the requirements of reg 2.72(15)(e) are met.
The Tribunal has found that the nominee’s earnings for the position in relation to the nominated occupation are not less than the TSMIT minimum of $53,900 as specified.
The applicant’s earnings initially on her employment in 2019 were (according to a November 2019 payslip) at the rate of $1,570.50 gross per week, or approximately $70,000 per annum, plus superannuation and allowances or overtime. As at June 2023, after 4 years’ experience in the role, the nominee’s gross salary was $83,381 plus allowances of $8,270, excluding superannuation. The Tribunal does not agree as was found by the delegate that the disparity between an advertised salary in the $50k range and an actual offer of $70k plus entitlements means the applicant had not properly ‘tested’ the Australian labour market by reference to an accurate AMSR.
The offer made to a possible successful candidate was always going to vary according to their individual experience and qualifications for the role, and a range in that estimated here between $50-$70k was entirely appropriate. The nominee herself started on a lower salary (at $54k) similar to that advertised in the range, and very soon after was negotiated upwards to reflect her experience and to ensure from the applicant’ s point of view that it could retain her services in a competitive market.
For these reasons the requirements of reg 2.72(15)(f) are met
There is no information before the Tribunal referred to above to indicate that the AMSR is inconsistent with Australian labour market conditions relevant to the occupation.
The evidence submitted shows the nominee is paid an average salary according to the relevant Award at the time of decision, while still commensurate with what an Australian citizen or 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 and as at the time of this decision.
The applicant has provided evidence that above Award rates are common in the current climate because of the skill shortage, where the occupation is in demand and where a genuine skill shortage exists. The Tribunal finds that the nominee’s current salary on the evidence, including allowances such as overtime (which will vary) and superannuation, is around $90,000.00 pa, which is either average or slightly above the current market rate, and higher than the Award, and aligns with current market conditions.
The Tribunal concludes for these reasons that the requirements of reg 2.72(15)(g) are met.
Employment conditions
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.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b).
In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
The Tribunal has considered the nominee’s proffered employment contract and had regard to the evidence about the employment terms and conditions currently, and listened to the evidence of both the director and the nominee. The Tribunal finds that there is no information that indicates the nominee’s employment conditions (earnings having been considered separately) will be less favourable than those for the Australian equivalent.
The employment contract relied upon is a standard agreement which includes statutory requirements required by the Fair Work Act (Cth) and State provisions for holiday pay, and accrued sick leave and compassionate leave.
The phrase “discriminatory recruitment practices” is not a defined term. The Tribunal finds there is no evidence before it that the applicant has engaged in any discriminatory recruitment practices, based on the available information and applying the language of the expression in accordance with its ordinary meaning and by reference to the evidence of the contract proffered to the nominee.
For these reasons the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
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).
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 IMMI18/036.
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.
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 LIN18/036.
The Tribunal notes that Australia has no relevant Free Trade Agreement in place with Morocco being the country of origin of the nominee. The application is also not subject to a major disaster exemption or a skill or occupational exemption. As a result, the LMT provisions are applicable to this application.
The relevant LMT instrument provides that the advertising must be in the English language, in at least 2 advertisements, on a recruitment website with national reach in Australia, or similarly in print media with national reach, or on radio. Where the sponsor is accredited (not the case here), the advertising may appear on the approved sponsor’s website.
The advertising must continue for a period of at least four weeks from first publication and have occurred within four months of the lodgement of the application. The advertisements must include the title description of the position, skills and experience required, name of the sponsor (or the recruitment agency), and the salary for the position where the proposed earnings are lower than $96,400.
The Tribunal has had regard to the submitted summary of the applicant’s recruitment efforts and as submitted to the Department. The evidence is that two advertisements for the position appeared on line on two separate national platforms, Indeed and Gumtree. The evidence is and the Tribunal accepts that the applicant regularly advertises on both platforms.
As acknowledged by the delegate, the applicant has submitted two advertisements. The delegate was concerned that the advertising did not contain the sponsor’s name, was for a “casual position”, and disclosed a significant difference between the advertised salary of AUD50,000 and the existing full-time role with a salary of AUD72,608. The delegate found the applicant had not genuinely tested the local labour market.
The Tribunal has had regard to the advertisements submitted which both appeared on 20 January 2020. On the available information the Tribunal is satisfied that the advertisements relied upon appeared for the requisite period of 4 weeks and within the period of 4 months prior to lodgement of the application.

The Tribunal is further satisfied that the advertisements met the requirements in the instrument where the advertisements must include the title description of the position, skills and experience required, name of the sponsor (or the recruitment agency), and the salary for the position, where expressed both as an appropriate range and specified. The advertising evidence submitted to the Tribunal is that the name of the nominator, FCS, appeared in the advertising to identify the advertiser, that the correct salary for the AMSR for the position was stated in a range and the position described including the location where the work was to be carried out.
The director gave evidence that he had personally received the responses from candidates between January and April 2020, before lodgment of the application. He did not produce notes or records of interviews. He explained that when he received a phone response, he would decide after speaking to the candidate whether he would interview them. He explained that some candidates had no experinece and were simply scouting to see what was on offer. Others were too junior. At the time of advertising , which he conceded was necessary in order to meet the requirements before lodgment, the nominee had been employed (on a graduate work visa) since July 2019, and he stated that he was satisfied with her work.
The nominee said she knew the advertising process was underway and discussed her role with the director. She said she was told her job was not at risk, but that the applicant must test the market nonetheless. She was aware the director had conducted interviews but did not have any role in that process. The director said that if he had an interesting candidate, he would take them onsite for an interview, as he had done with the nominee, before hiring them on a preliminary basis to see how they might work out. He said his company did not attract high performing candidates with any experience, as the top graduates (and others) all wanted to start with the bigger employers and work on larger civil engineering projects for their resumes.
The nominee for her part said she came to Australia looking for work as a young graduate, and was not looking for high salary or employer-reputation and just wanted to work.
The director said that despite her advantage of having proved herself in a relatively short period since July 2019 and after her commencement, the nominee had proved to be very accomplished. He said she performs the majority of tasks as described in ANZSCO and has responsibility for the annual ISO accreditation, supervised by the external business adviser, Mr Penfold, who also gave evidence to that effect.
The director said that of the 10 responses he received to the advertised position of civil engineer, none were as qualified or with the experience of the nominee and some had proved not interested. He said the nominee is highly valued as the civil engineer in the enterprise and involved in tendering and quotations, working both on sites and in the office and managing the automated business programs for project management and site activity, including deliveries and project reports. She is also integral to the ISO accreditation assurance system which is audited annually and prepared and checked by Mr Penfold with the nominee’s assistance, and from the director’s point of view, and as the principal of the applicant, and to whom she reports on a daily basis, she has demonstrated her value and skillset which exceeded any of the applicants who had applied.
The information demonstrates to the Tribunal’s satisfaction the number of applicants who applied and that the director rejected the unsuccessful and less experienced applicants as he was entitled to do, and who were rejected as not having the nominee’s level of experience. The regulation does not mandate that only Australians or permanent residents should be selected, but only that it is a merits-based system where preference goes to any suitably qualified and experienced Australian citizen, permanent resident, or eligible temporary visa holder available to fill the nominated position, and who meets the applicant’s requirements for the role. The only caveat is that the nominator needs to genuinely test the employment market. Conversely, ultimately it is for the nominator to find the best fit for the role.
On the information submitted and the documents produced the Tribunal is satisfied that the position was advertised as required by the regulation, and that there was no other appropriate candidate who responded to the advertising who has the nominee’s skillset for the position or who was available for selection.
On that basis having listened closely to both the director and the nominee and considered all the available information, the Tribunal finds it is satisfied the applicant has genuinely tested the market for the appropriate employee and chosen the nominee for her particular skillset. Having met the regulation requirement for advertising, and necessarily going through the process for that purpose, does not disenfranchise the director from making his own decision about who might be best to employ, including the nominee, where he wants to keep her on as the best performing candidate.
The Tribunal accepts that the advertising criteria have been met. The evidence discloses to the Tribunal’s satisfaction that there was no suitable qualified and experienced Australian citizen, permanent resident, or eligible temporary visa holder available to fill the nominated position.
Further, there is no evidence that any Australian citizens or permanent residents were made redundant/retrenched, prior to the advertising being undertaken (or at all).
For these reasons, the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
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).
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). The applicant in this instance is liable to pay the charge, the application having been made on 15 April 2020.
The Tribunal is satisfied on the available information that the Department has collected the charge on lodgement of the application, and which has been receipted for the applicant, and which amount includes the SAF levy as calculated for the application in the Medium-term stream.
For these reasons the requirements of s 140GB(2) (aa) are met .
Conclusion
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Alan McMurran
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2023] AATA 4269

15 December 2023

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