Gil Tiling Pty Ltd (Migration)

Gil Tiling Pty Ltd (Migration) [2018] AATA 4920 (23 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gil Tiling Pty Ltd
CASE NUMBER:  1711407
DIBP REFERENCE(S):  BCC2017/955510
MEMBER:Mr S Norman
DATE:23 October 2018
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 24 October 2018 at 12:40pm

CATCHWORDS
MIGRATION – nomination approval – standard business sponsor – genuine position – specified occupation – Wall and Floor Tiler – no less favourable employment conditions – wages consistent with comparable income rates – gained qualifications and relevant work experience – full time position required – work supplemented by contractors –nominee a South Korean citizen – labour market testing not required –decision set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 245AR

Migration Regulations 1994 (Cth), rr 2.57, 2.72, 2.73
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 on 19 May 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 10 March 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), because they were not satisfied the position was genuine.
The applicant (represented by Mr Kevin KIM) appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dongchan SEO (the visa applicant), and Mr Alex ISKENDERIAN (witness). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. 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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
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 evidence before the Tribunal, I am satisfied the nominator/applicant (Gil Tiling P/L – sponsorship application transaction reference number: EGOE0VX2T6[1]) is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a); that the applicant identifies in the nomination a proposed nominee for a Subclass 457 visa as the person who will work in the nominated position: r.2.73(1A)(b);[2] that the nomination was made using the approved form and fee[3]; that the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5);[4] that a written certification was lodged as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B)[5]; and that the nomination includes the location at which the occupation will be carried out (Carlingford NSW[6]), and the applicant has identified the 6 digit ANZSCO code (Wall and Floor Tiler – ANZSCO: 333411[7]).
[1] Department – folio 9.
[2] Department – folio 2.
[3] Department – from folio 9.
[4] Department – folio 2.
[5] Department – folio 3.
[6] Department – folio 6.
[7] Department - folio 6.
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.
By migration agent letter of 26 February 2018,[8] it was claimed the nominator’s standard business sponsorship was approved on 12 May 2016 and that sponsorship would expire on 12 November 2018. Based on the evidence before the Tribunal (including that the applicant – being Gil Tiling P/L – has provided the sponsorship application transaction reference number: EGOE0VX2T6[9]), I am satisfied the applicant is a standard business sponsor.
[8] Tribunal – from folio 54.
[9] Department – folio 9.
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.
Based on the evidence before the Tribunal, I am satisfied the applicant has identified in the nomination the proposed applicant for the visa (the nominee - Mr Dongchan SEO), who will work in the nominated occupation.[10]
[10] Department – folio 2.
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.
The applicant stated the nominee had never held a subclass 457 visa.[11] At the hearing, the visa applicant/nominee said he arrived in Australia in (approximately) February 2013 on a Working Holiday visa, that he subsequently obtained a Student visa in Australia, and that he now held a Bridging visa. He said he had never held a subclass 457 visa. The Tribunal has therefore, not considered this criteria further.
[11] Department – folio 3.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one; and
·the location(s) at which the nominated occupation is to be carried out.
The evidence before the Tribunal includes that the nominated occupation is a Wall and Floor Tiler (ANZSCO: 333411), and that the nominated position is to be based in Carlingford NSW[12] (though the visa applicant is then directed to work at job sites around Sydney, where the services of the nominator’s business have been engaged).
[12] Department – folio 6.
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.
A written certification was lodged by the nominator claimed they had not engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B)[13].
[13] Department – folio 3.
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.
There is no adverse information known to Immigration or the Tribunal, about the applicant or a person associated with the applicant.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
Subclause 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).
Based on the evidence before the Tribunal, I am satisfied that the requirements of r.2.72(10)(aa) are met.
Based on the evidence before the Tribunal, 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).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI MMI13/028 – being AUD $250,000: r.2.72(10)(AB).
By migration agent submissions of 2 May 2017,[14] it was claimed the nominated position had been filled and held by the nominee for “some months”; that the business employed one permanent resident, one person on a student visa, one person on a working holiday visa, two Australian citizens, and the nominee. The nominator lodged an Employment Contract.[15] Also lodged was comparative wage information.[16]
[14] Department – folio 11.
[15] Department – from folio 21.
[16] Tribunal – from folio 23.
Based on the evidence before it, the Tribunal is satisfied that the terms and conditions of employment of the identified nominee will be no less favourable than the terms and conditions that are provided, or would be provided, to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI13/028 – being 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 IMMI13/028 – being AUD $250,000; r.2.72(10AB).
In the nomination application, it was claimed the base rate of pay for the nominee was AUD$60,000 per annum[17] (for a 38 hour week). Also lodged was comparative wage information.[18] Accordingly, the annual earnings for the nominee are equal to or greater than the TSMIT income threshold specified in the instrument for r.2.72(10AB).
[17] Department – folio 5.
[18] Tribunal – from folio 23.
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;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
In the nomination approval form, the applicant had claimed the tasks of the advertised position include a significant majority of the tasks for the position of Wall and Floor Tiler – ANZSCO: 333411. The ANZSCO code stated:
UNIT GROUP 3334 WALL AND FLOOR TILERS
WALL AND FLOOR TILERS lay ceramic, clay, slate, marble and glass tiles on external and internal walls and floors to provide protective and decorative finishes.
Indicative Skill Level
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
oexamining plans, measuring and marking surfaces and laying out work
opreparing wall and floor surfaces by removing old tiles, grout and adhesive, filling holes and cracks, and cleaning surfaces
ospreading adhesive onto prepared surfaces and tiles, and setting tiles in position
ousing tile-cutting tools to cut and shape tiles needed for edges and corners, and around objects such as fittings and pipes
oensuring tiles are correctly aligned and spaced
ogrouting tiles, and cleaning and removing excess grout
oapplying waterproofing systems
omay lay floors of granolithic, terrazzo, cement or similar composition
omay lay coloured tiles in patterns to create mosaics
Occupation:
333411 Wall and Floor Tiler

333411 WALL AND FLOOR TILER
Lays ceramic, clay, slate, marble and glass tiles on external and internal walls and floors to provide protective and decorative finishes. Registration or licensing may be required.
Skill Level: 3
Specialisations:
Ceramic Tiler
Mosaic Tiler
By migration agent letter of 26 February 2018,[19] and when referring to the tasks performed by the nominee, the agent identified tasks which reflected the tasks in ANZSCO. Exceptions included that the nominee was required to have strong organisational skills and attention to detail. After discussing the duties performed by the visa applicant at hearing, and based on the evidence from the applicant and the witness at hearing (the witness had worked in the construction industry for around 20 years, and regularly engaged the nominating business to perform tiling work in a range of projects), I am satisfied that a significant majority of the tasks of the nominated position, are reflected in the occupation as defined in ANZSCO.
[19] Tribunal – from folio 54.
Next, the nominator lodged a Current & Historical Company Extract;[20] stating the business had been registered on 4 October 2017, and bank statements.[21] Based on the evidence, the Tribunal is satisfied the applicant lawfully operates a business in Australia, and that the nominated occupation is with the business of the applicant.
[20] Department – from folio 24.
[21] Department – from folio 47.
Next, at hearing the visa applicant explained that as a Student in Australia, he had obtained a Certificate III in Tiling, and that he had around four years experience in tiling and carpentry in South Korea, and that he had worked in the nominating business (part time), since approximately October 2013. Accordingly, the Tribunal is satisfied the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO.
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.
The nomination application (lodged 10 March 2017) stated that a job advertisement had been placed on the Internet site “Gumtree” since 17 February 2017. However, it was then claimed that the applicant “had not received any satisfactory reply yet”. The nomination approval form also indicated the position was for a period of 18 months.[22]
[22] Department – folio 3.
By migration agent letter of 2 May 2017,[23] after setting out the tasks of the nominated position, it was claimed the nominator had been operating “a couple of private companies over the last many years in construction industry especially tiling service provider”. By migration agent submissions of 2 May 2017,[24] it was also claimed the nominated position had been filled and held by the nominee for “some months”; that the business employed one permanent resident, one person on a student visa, one person on a working holiday visa, two Australian citizens, and the nominee. Then it was claimed the nominator believed they need at least “two or three more skilled full-time Tiler’s (permanent positions) to meet current works”. It was then claimed that “due to current property market conditions and a population in Sydney…[which may] double in 30 years…there would be more property … required in order to accommodate all anticipated population”.
[23] Department – from folio 12.
[24] Department – folio 11.
In their decision, and after considering the evidence before them, the Department delegate was not satisfied the advertised position was “what it purported to be”. They were not satisfied the advertised position was that which is nominated as a Wall and Floor Tiler (ANZSCO: 333411). After noting the work tasks identified for Wall and Floor Tiler (in ANZSCO), and then noting (ie) the employment contract and the statement by the applicant regarding the genuine nature of the nominated position, the delegate was not satisfied the proposed tasks the nominee would be performing supported a conclusion they would regularly perform the full breadth of duties as defined for a Wall and Floor Tiler (in ANZSCO).
The delegate based this finding on what they understood to be the size and turnover of the business, which did not satisfy them the nominator’s business could support the position, in addition to the other staff already employed (one permanent resident, one person on a student visa, one person on a working holiday visa, two Australian citizens, and the nominee). The delegate then noted the applicant’s claims about the projected growth of the business, including advice that the business would be able to support the position and that it was anticipated that more construction work would follow. However, without independently verifiable information, the delegate was not satisfied this was the case.

Based on the above findings, the delegate was not satisfied the nominator met r.2.72(10)(f), and therefore did not meet r.2.72.(10). Therefore, the delegate was not satisfied the applicant met the prescribed criteria for approval of nomination for the Subclass 457 (Temporary Work (Skilled)) visa.
By s.359(2) letter of 15 February 2018, the Tribunal wrote to the applicant (dispatched by email to their migration agent), and requested updated and current information that would allow the Tribunal to assess whether they meet r.2.72 of the Migration Regulations.
By migration agent letter of 26 February 2018,[25] it was claimed the standard business sponsorship was approved on 12 May 2016 and that sponsorship would expire on 12 November 2018; that in January 2018 the total income credit was said to be $39,613.12; that from July 2017 to December 2017, the nominator’s business generated income of $244,525.22 – indicating a 15% increase of income compared to 2016 to 2017; that the business was therefore growing; that the business was then working on four named worksites; that the nominator still believed they needed 2 – 3 more skilled full-time Tilers. It was again claimed that more work was expected.
[25] Tribunal – from folio 54.
By migration agent letter of 26 February 2018,[26] it was claimed that at the time the nomination approval was lodged, the nominator’s business employed one permanent resident, one person on a student visa, one person on a working holiday visa, two Australian citizens, and the nominee (6 employees). At the time of the 26 February 2018 submission, it was claimed the nominator’s business employed one permanent resident, one person on a working holiday visa, two people on student visas, and one person on a Bridging visa – being the nominee (5 employees).[27] It was also claimed many staff changes had been made since the nomination approval application was lodged.
[26] Tribunal – from folio 54.
[27] Tribunal – folio 54 (reverse side).
Financial documents lodged included a Profit and Loss Statement for year ending 30 June 2017. That indicated wages of $60,369 and subcontractor fees of $103,334.[28] Also noted was a trading profit of $285,425.21. It was then noted the loss from ordinary activities before income tax was $7353.42. Also lodged were bank statements;[29] evidence of business contracts;[30] and Tax Invoices.[31] At hearing was lodged a Detailed Profit and Loss Statement for the year ended 30 June 2018. Amongst other things, that indicated that ‘Profit from Ordinary Activities before Income tax’ was ‘$2,493.44’; and that fees for ‘Subcontractors’ were $196,150’. It was also claimed the nominator’s business would “easily be able to meet its financial duties”, if it did not need to pay for sub-contractors (as the work that may have otherwise been given to sub-contractors could be undertaken by the nominee).
[28] Tribunal – folio this51.
[29] Tribunal – from folio 51 (reverse side).
[30] Tribunal – from folio 43.
[31] Tribunal – from folio 40; and again from folio 83 (reverse sidre).
At hearing, and after noting the declared loss for the financial year ending 30 June 2017 and the minimal profit before income tax for the year ending 30 June 2018, the Tribunal said it may consider the nominating business did not have the capacity to employ the nominee full time in the position (he had worked part time since October 2013), and this may cause the Tribunal to be satisfied the position was not genuine. The applicant said he was paying substantial amounts for sub-contractors; it was proving increasingly difficult to ensure the work of sub-contractors was of good quality; and it was also proving increasingly difficult to ensure that sub-contractors were at varying work locations on time.
The applicant therefore wished to engage the nominee on a full time basis, to ensure the quality of the work - and the witness at hearing who engaged the nominating business for a ‘few months each year’ on a range of tiling work projects, said that he would specifically ask for the nominee with whose work he was ‘very pleased’, and who was very courteous and helpful with customers. The applicant also said that given his English language skills were not sufficient, and given the nominee was competent in the English language (something the Tribunal accepts after speaking with the visa applicant at hearing), a further value the nominee added to the business was that he was able to act as a ready interpreter as needs required. The Tribunal accepts this is correct.
Next, at hearing the Tribunal noted that country information it had seen indicated there had been a substantial downturn in the building and or property market, that foreign investment had suffered substantial reductions, and that major development projects had been ‘put on hold’, as developers waited to see whether market prices justified the risk they may take if they proceed with their property developments. This is something that was not disputed at hearing. However, the witness said that he was still able to locate substantial work opportunities, given there was a lack of good quality tilers, and given there were increasing opportunities to provide remedial work on even more recent construction, where the initial tiling and other work had already commenced to deteriorate. After considering all the evidence, the Tribunal accepts this is correct.
Having considered all the evidence, the Tribunal is satisfied the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the instrument IMMI (and the Tribunal understands there is no current instrument).
The Tribunal has considered the written contract of employment signed by the nominator and the nominee and dated ‘21/02/2017’.[32]
[32] Department – folio 18.
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 applicant, these must have been met.
Based on the evidence before the Tribunal, I am not satisfied the applicant is a party to a work agreement.
For these reasons the requirements of r.2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 18/059. 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 approval form, it was claimed the applicant had undertaken labour market testing on 17 February 2017.[33] It was also claimed the qualifications essential for the position included a Certificate III in Wall and Floor Tiling, and at least two years of relevant work experience[34] (see IMMI 13/136).
[33] Department – folio 5.
[34] Department – folio 4.
The nomination application stated that a job advertisement had been placed on the Internet site “Gumtree” since 17 February 2017. However, it was then claimed the applicant “had not received any satisfactory reply yet” (the nomination approval was lodged on 10 March 2017). The nomination approval form also indicated the position was for a period of 18 months.[35] Further, at the Tribunal hearing the applicant provided two letters (one from a named person in the nominating business; and one the Director of a competitor’s business), who claimed (words to the effect) that it was very difficult to engage experienced and willing tilers.
[35] Department – folio 3.
That being said, the Tribunal notes that IMMI 17/109 provides that:
Part 2 –Determination of international trade obligations relating to labour market testing
6 International trade obligations with which it would be inconsistent to require labour market testing
(1) For the purposes of subsection 140GBA(1)(c) of the Act, the imposition of labour market testing would be inconsistent with Australia’s international trade obligations arising from the following international trade agreements:
…
h. the Korea-Australia Free Trade Agreement; …
The Korea-Australia Free Trade Agreement treaty states (in part):
Annex 10-A: Specific Commitments on the Movement of Natural Persons
Section A: Australia's Specific Commitments
1Australia requires a natural person of Korea seeking temporary entry to its territory under the provisions of this Chapter and this Annex to obtain appropriate immigration formalities prior to entry. Grant of temporary entry in accordance with this Annex is contingent on meeting eligibility requirements contained within Australia's migration law and regulations, as applicable at the time of an application for grant of temporary entry. Eligibility requirements for grant of temporary entry in accordance with paragraphs 5 through 11 include, but are not limited to, employer nomination and occupation requirements.
…..
Contractual Service Suppliers of Korea
10. Entry and temporary stay shall be granted to contractual service suppliers of Korea for a period of up to one year, with the possibility of further stay.
11. A contractual service supplier of Korea means a natural person of Korea who has trade, technical or professional skills and experience and who is assessed as having the necessary qualifications, skills and work experience accepted as meeting Australia's standards for their nominated occupation and is:
a. an employee of an enterprise of Korea that has concluded a contract for the supply of a service within Australia and which does not have a commercial presence within Australia; or
b. engaged by an enterprise lawfully and actively operating in Australia in order to supply a service under a contract within Australia.
The evidence before the Tribunal indicated the nominee is a (South) Korean citizen. As the nominee is therefore a natural person of Korea who is a contractual service supplier (as defined above), it is inconsistent with Australia’s international trade obligations to require labour market testing under s.140GBA(1)(c) in this matter.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
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)a standard business sponsor; or
(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.

[2018] AATA 4920

23 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction