Global Welding Supplies (Migration)

Global Welding Supplies (Migration) [2022] AATA 1673 (26 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Global Welding Supplies
CASE NUMBER:  1911478
HOME AFFAIRS REFERENCE(S):          BCC2019/1621482
MEMBER:Alison Mercer
DATE:26 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 26 May 2022 at 3:40pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – labour market testing – advertisement did not meet requirements – no response to tribunal’s invitation to provide current information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA(3)(a), (aa), (b)(i), (4), (5), (6), 359(2)
Migration Regulation 1994 (Cth), Schedule 2, cls 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Yang v MIAC [2010] FMCA 890

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 Home Affairs on 29 April 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Global Welding Supplies, applied for approval of its nominated position of Customer Service Manager (ANZSCO code 149212) on 1 April 2019. A nomination of an occupation for a subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s.140GBA in relation to its labour market testing (LMT) efforts. The delegate noted that the applicant was not exempt from having to demonstrate that it had conducted LMT in the specified manner and period but found that it had indicated in the nomination form that it was not required to do so as it had been trying for some time to fill the nominated position. The delegate further found that it had provided no evidence of having advertised the position with the nomination application.
The Tribunal received a review application on 10 May 2019. It was lodged on behalf of the applicant by its business development manager, Mr Ronald Barker. Mr Barker also appointed himself as the authorised recipient for correspondence for the applicant. He provided a number of documents with the review application, including:
·a copy of the delegate’s decision;
·evidence of the resumes of unsuccessful candidates for the nominated position;
·advertisement on Seek.com for the nominated position, and invoice for same dated 12 April 2018;
·an undated statement by Mr Barker; and
·emails between the Department and Mr Barker, variously dated.
On behalf of the applicant, Mr Barker made progress inquiries of the Tribunal on 3 June 2019, 8 July 2019, 2 January 2020, 17 February 2020, and 5 October 2020. On each occasion, he was advised that the matter had not yet been constituted to a Tribunal Member due to the current workload of the Tribunal.
On 28 March 2022, the Tribunal wrote to Mr Barker pursuant to s.359(2) of the Act to invite him to provide updated and current information demonstrating that the applicant met all of the relevant criteria in r.2.72 and s.140GBA (not just the criterion that the delegate found was not met). The Tribunal provided examples of the kind of information that would assist it to assess whether the nomination requirements were met, and requested that the information be provided to the Tribunal by 11 April 2022. The Tribunal advised Mr Barker that if he did not provide the requested information (or request an extension of time to do so) by 11 April 2022, then the applicant would lose its entitlement to have a person appear at a Tribunal hearing on its behalf and the Tribunal might proceed to a decision without taking further steps to obtain the requested information.
The Tribunal did not receive the requested information, or a request for an extension of time to do so, by 11 April 2022. It has received no communication from Mr Barker (or anyone else) on behalf of the applicant, or the agent, to date.
The Tribunal is satisfied that its s.359(2) letter was sent to the email address nominated by Mr Barker in the review application for the applicant’s authorised recipient for correspondence. There is no evidence that the Tribunal’s email was not delivered or was undeliverable.
On behalf of the applicant, neither Mr Barker nor any other person authorised to act on behalf of the applicant company has responded to the Tribunal’s s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.
Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that Mr Barker and the applicant were provided with a 14 day period in which to provide the information requested by the Tribunal (and the opportunity to request an extension of time to do so). In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved 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.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal finds, from the information that was submitted to the Department, that the nominated position was a full time one, and thus finds r.2.72(10)(b) is met.
The Tribunal has not been provided with any updated information as to the nature of the applicant’s business operations in 2022, and in particular, whether it has a genuine need for the nominated position within the business some 2 years after the delegate’s decision. The Tribunal notes that the information provided to the Department indicates that the applicant operated successful technical business with several branches in regional Queensland in 2019; however, no evidence has been provided to indicate that this business is still operating in 2022. No submissions have been provided as to the applicant’s current need for the nominated position in its business, and indeed, the most recent material concerning the business was provided to the Tribunal in April 2019, over 2 years ago. This did not include any financial statements for the applicant or any Business Activity Statements (BAS).
Given the dearth of any current information about the applicant’s employees, structure, operations and financial situation, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine as it is not satisfied that the applicant actually does require a position of this kind. Accordingly, it is not satisfied that r.2.72(10)(a) is met, and finds that r.2.72(10) as a whole is not 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 the Minister has determined it would be inconsistent with a specified international trade obligation.
The Tribunal is satisfied that the applicant does not fall within the major disaster or skill and occupational exemptions in ss 140GBB-140GBC, and is not satisfied that LMT in this case 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 instrument IMMI 18/036 (in the 4 months immediately prior to the lodgment of the nomination application). 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 IMMI 18/036.
As noted above, the LMT had to be undertaken in the 4 months prior to the lodgment of the nomination (see item 6 of IMMI 18/036). Item 8 provides that:
·any advertisements must be in English;
·there must be at least 2 advertisements (a) on a recruitment website with national reach in Australia; or (b) in print media with national reach in Australia; or (c) on radio with national reach in Australia; or (d) if the approved sponsor is an accredited sponsor - on the approved sponsor’s website;
·all advertisements must contain a position description and/or title, the salary range (if the salary is less than $96,400 per year), the name of the employer (or recruitment agency) and the skills/experience required;
·the advertisements must be active for at least 4 weeks; and
·copies of the advertisements lodged must be provided with the nomination application.
The Tribunal has reviewed the information provided with, and in, the nomination application lodged on 1 April 2019. It notes that:
·in the nomination form, in response to the question of whether LMT was required, the answer was ‘no’ and a comment was made referring to an LMT statement, also provided; and
- the LMT statement uploaded with the nomination application on 1 April 2019 contains the following: ‘We have been attempting now for some time to get the right person for this job in Gladstone but most of the applicants we have are not technical people, we advertised on job seek about a year ago and even received an application from a worker at KFC. All of the qualified people in that region are getting double the money we are offering in the mines or other locations. We have been in this location for about 14 years now and never had the right person to do what our applicant can do. Give technical advice to clients and train new staff we want to employ there but without the training we cannot.’
The Tribunal further notes that the applicant did not upload a copy of the advertisement stated to have been lodged on Seek ‘about a year ago.’
When the applicant lodged its review application with the Tribunal, it provided the following:
·invoice issued by Seek.com on 12 April 2018 for advertisement for ‘Branch Manager;’
·copy of Seek advertisement text, which is in English and includes the name of the applicant as employer, gives the position title and description, also lists the experience required and states that the salary package includes superannuation, a vehicle, a mobile phone and income protection and life insurance. No salary range is provided, however;
·undated statement from Mr Barker giving context to the applicant’s LMT efforts; and
·resumes of unsuccessful candidates for the nominated position.
In Mr Barker’s statement, he makes the following points:
…
Referring to the rejection of nomination notice number I would like to say the following.
I was not with the company when the below was done last year [2018]. When I was filling out the Nomination form recently, I asked one person in GWS Townsville did we advertise for the staff there and was told “no don’t think so”, sorry this was my mistake for not further investigating.
Since receiving your reply, I have delved into this much deeper and found that we did in fact deal with Job Seek (see invoices attached) to employ a sales rep and a branch manager in Gladstone in April 2018. as I’m at our head office in Townsville and the recruitment for the Gladstone positions were done by our Brisbane branch. It was only when I received the rejection I dug deeper and found out about this. I am terribly sorry and hope that you can review our nomination.
As you will see we received 8 applicants that were worth interviewing. [Redacted] was employed as Manager but did apply as sales rep. We could not get both from the applicants but needed a manager so we gave [him] the job as branch manager. Since then we have found out that he cannot do the job hence our idea to bring in our Nominee from India who is well experienced and able to train new staff.
...
I would be more then happy to take any calls to discuss this.
Ron Barker
…
The Tribunal accepts from the above that it is evident that the applicant did in fact conduct LMT in April 2018 for the nominated position, and on Mr Barker’s evidence, failed to attract a suitable candidate at that time. However, the information about this did not accompany the nomination application when it was lodged on 1 April 2019, as required by item 8 of IMMI 18/036.
Moreover, it is also evident that this LMT did not meet the requirements set out in IMMI 18/036, as:
·    the Seek advertisement was placed outside the 4 month timeframe immediately before the nomination application was made on 1 April 2019 (as required by item 6 o IMMI 18/036);
·    it appears only 1 advertisement was lodged and a minimum of 2 was required (as required by item 8 of IMMI 18/036); and
·    although the Seek advertisement provided most details required, it did not list the actual salary range (as also required by item 8).
Accordingly, the Tribunal must find that the LMT undertaken by the applicant did not meet the requirements of ss.140GBA(3)(a),(aa),(b)(i), (4), (5) and (6).
For these reasons, the labour market testing requirements in s 140GBA are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alison Mercer
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)…

[2022] AATA 1673

26 May 2022

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Immigration

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Statutory Interpretation

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