Heights Pet Hospital Services PTY LTD (Migration)

Heights Pet Hospital Services PTY LTD (Migration) [2022] AATA 2214 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Heights Pet Hospital Services PTY LTD
CASE NUMBER:  1905486
HOME AFFAIRS REFERENCE(S):          BCC2019/1060061
MEMBER:Alan McMurran
DATE:30 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 30 June 2022 at 11:52am

CATCHWORDS
MIGRATION – approval of a nomination – Medium-term stream – occupation of Veterinarian – labour market testing – labour market conditions unchanged – nomination training contribution charge – review application submitted “in error” – recruitment advertising period – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 359, 360
Migration Regulations 1994, rr 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 Home Affairs on 7 March 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 applied for approval on 4 March 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 Medium-term stream. The nominee, Ms Asalepele Setogile, a citizen of Botswana, is nominated for the occupation of Veterinarian (ANZSCO 234711) to work in the applicant’s veterinary hospital at Singleton in NSW.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s.140GBA because the period in which Labour Market Testing (“LMT”) is required was not complied with, and that testing which did occur, took place more than 4 months before the application was lodged.
On 24 May 2022, the Tribunal sent a letter to the applicant under s.359(2) requesting information. The request included particulars of the information necessary to support the nomination. The applicant was asked to respond by 7 June 2022. The applicant did not respond, and as at the date of decision, nothing further has been submitted by the applicant or on its behalf since the Tribunal letter of 24 May 2022.
The Tribunal emailed the applicant at the email address recorded for its communications.[1] The Tribunal email of 24 May 2022 was notified as delivery status “failure”. The Tribunal has not been notified of any new email address for the applicant or for contact. The Tribunal notes that previous communications from the applicant to the Tribunal from that same recorded email address were received.
[1] [email protected]
Under s.360 of the Act, the Tribunal must invite the applicant to appear. However, if the applicant has failed to respond to an invitation to give information within time, s.359C(1)(b) provides that the Tribunal may decide the review without taking any further action to obtain the information. Furthermore, s.360(3) provides that the applicant is not entitled to appear where s.359C(1) applies.
The Tribunal finds that the applicant has lost the right to attend a hearing to give evidence and present arguments. The Tribunal has proceeded to determine the review based on the information presently available as at the time of this decision.
The applicant was unrepresented in relation to the review.
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.
The Tribunal has available for review the Department application and related information on the Department file, and the Tribunal file for this merits review. The Tribunal also has regard to the Act and Regulations and Department Policy.
Background
The applicant is a currently registered corporate entity operating a veterinary business at Singleton in NSW. The applicant is seeking to recruit veterinarians to work in its practice.
The application chronology is very short. The applicant lodged the application on 4 March 2019. On 7 March 2019, the Department refused the application, and on the next day, 8 March 2019, after receiving the Department’s decision to refuse the application, this application for review was lodged, together with an explanatory statement on behalf of the applicant by its authorised officer and director.
The applicant’s explanation from the officer, Mr Anthony Girdler, sought to explain that although he was aware of the LMT requirements, and conceded that the applicant had not conducted recent testing, that this should be overlooked as the “labour market conditions have not changed since we did the testing”. His explanation then went on to provide a full background into the very real difficulties and related issues faced by the applicant, and no doubt many other veterinarians, in attempting to recruit suitable staff who are generally not readily available. The Tribunal empathises with those concerns.
The applicant telephoned and emailed the Tribunal on 11 and 18 March 2019. The Tribunal case notes record that the applicant’s Mr Anthony Girdler spoke to a Tribunal officer and on both occasions inquired about obtaining a refund for having lodged the review application, and in summary, stating that the application for review had been submitted “in error”. He was informed that policy did not provide for a refund of the application fee in the circumstances of an application ‘filed in error’. The case officer explained that the AAT had no discretion in the matter.
Mr Girdler emailed the Tribunal on 11 and 18 March 2019, where he explained the applicant’s circumstances. In substance, Mr Girdler explained that he had filed the application “in a panic”, that “the nomination was placed by mistake” using “an old nomination in the home affairs system” and that “there is nothing to appeal”.
Mr Girdler stated that he had “withdrawn the visa nomination application”. The Tribunal, however, did not receive a formal withdrawal request in the appropriate form.
Since those early communications immediately following the Department refusal and the AAT responding to the applicant that a refund was not available, nothing further has been submitted, and no further information provided, despite the Tribunal’s invitation as referred to above. A recent ASIC inquiry[2] reveals the applicant is currently registered and actively trading since 11 March 2011. The company ABN status, however, (last updated 19 Jan 2022) was cancelled from 20 April 2020, and it is not currently registered for GST.
[2] 30 June 2022
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.
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 LMT condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/036. That prescribed period is 4 months, ending on the day on which the nomination form in relation to the nominated application is lodged.
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.
The Tribunal does not have any discretion to waive the LMT requirements, where applicable.
In this instance, the Tribunal finds that there is no major disaster or skill and occupational exemptions in ss 140GBB-140GBC which apply, or that the Minister has determined it would be inconsistent with a specified international trade obligation.
The Tribunal finds that the applicant must therefore comply with the LMT condition and submit supporting evidence to show that the condition is met. As stated, the Tribunal does not have a discretion to disregard the LMT requirements and which are applicable in this case.
The Tribunal finds in this instance and on the available information that:
a.According to the application filed, the applicant undertook LMT testing commencing 1 August 2017 ‘over 6 months’
b.It advertised with the Australian Veterinary Association online and in its professional journal in January 2018
c.It advertised again in veterinary schools in Sydney, Brisbane, Melbourne, Wagga and Perth for 12 months from Nov 2017, again with nil responses
d.It advertised with an employment agency, Kookaburra Veterinary Employment with a job ad for 12 months from November 2017
e.It advertised on Facebook over 12 months from August 2017
The applicant received no responses from qualified Australian citizens or permanent residents to its advertising. There is no information that the applicant had made anyone redundant or retrenched anyone at the time of advertising and which otherwise may have commenced at or when any redundancy or retrenchment occurred: [s.140GBA (4A)]
The applicant has conceded that the advertising did not take place over a period starting 4 months before the date of lodging the application with the Minister (on 4 March 2019), that is, on or after 4 November 2018.
The Tribunal has had regard to the applicant’s detailed written submissions received by the Tribunal on lodgement of the application for review on 8 March 2019. The Tribunal does not accept the submission that where the applicant has conceded that “testing was not recent enough”, it should find nonetheless that as “labour market conditions have not changed since we did the testing” that the advertising condition might therefore be waived. To do so would mean the Tribunal applying a discretion which it does not have and find that the applicant did not need to apply the condition in the circumstances.
The Tribunal finds that the LMT condition was required to be met and has not been met, as the advertising which occurred did not take place within the time-limited period of 4 months or less before lodgement.
For these reasons, the labour market testing requirements in s 140GBA are not met.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Where any criterion is not met, the Tribunal does not need to consider other remaining criteria.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
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)…

[2022] AATA 2214

30 June 2022

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