HYDRAULINK PTY LTD (Migration)

[2021] AATA 2421

HYDRAULINK PTY LTD (Migration) [2021] AATA 2421 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hydraulink Pty Ltd

CASE NUMBER:  1821525

HOME AFFAIRS REFERENCE(S):         BCC2018/2049963

MEMBER:Alison Mercer

DATE:12 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 2.00pm on 12 May 2021

CATCHWORDS
MIGRATION – nomination – occupation is nominated for a subclass 482 visa – Medium-term stream – applicant meets the LMT requirements – standard business sponsorship (SBS) was approved – decision under review set aside

LEGISLATION
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 2.72, 2.73

CASES

He v MIAC [2009] FMCA 1142
Moller v MIAC [2007] FMCA 168

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 2018 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).

2. The applicant, Hydraulic Australia Pty Ltd, applied for approval on 11 May 2018 for its nominated position of Fitter (General) (ANZSCO code 323211). A nomination of an occupation for a subclass 482 visa is made under s.140GB of the Act and r.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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s.140GBA, which contained provisions relating to Labour Market Testing (LMT). The delegate found that the applicant was not exempt from having to undertake LMT in a specified period prior to lodgment of the nomination application, and provide evidence of the same. However, the delegate found that the applicant provided insufficient evidence of the job advertisements that it claimed to have lodged in the 12 months prior to making its nomination application. As it had not met the LMT requirements in s.140GBA, the delegate refused to approved its nomination.

4. The Tribunal received a review application from the applicant on 25 July 2018. It was lodged on behalf of the applicant by its Human Resources Manager, Ms Tamara Roa, and was accompanied by a copy of the delegate’s decision.

5. On 4 May 2021, the Tribunal received an authority by which Ms Roa appointed a registered migration agent, Ms Jayme Hallam, to be the applicant’s representative and authorised recipient for correspondence. Also provided were the following documents:

   ·evidence of labour market prospects, advertising for the nominated position, and market salary rates for Fitter positions comparable to the nominated position;

   ·financial statements for the applicant for the financial year ending 31 March 2020;

   ·payroll summary statement for the applicant for period March 2020 to February 2021;

   ·ATO record of account transactions for the applicant for period 26 September 2020 to 16 March 2021;

   ·asset description list for the applicant;

   ·insurance certificate for the applicant issued 26 August 2020;

   ·photos of applicant’s sites, vehicles and workshop;

   ·position description for nominated position;

   ·employment agreement between the nominee and the applicant dated 20 April 2021;

   ·letters dated 20 April 2021 from Mr Simon Howell, Queensland State Manager for the applicant, addressing the genuine need for the position within the applicant’s operations and the market salary rates used to determine the nominee’s salary; and

   ·copy of relevant Award, being Pay Guide - Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], published 19 September 2019.

6. The applicant’s agent requested that, if possible, the Tribunal make a positive decision on the papers.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

8. 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

9. 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 r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s.140GBA must be met.

   The nomination must comply with the prescribed process

10. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.

11. The Tribunal is satisfied from its review of the Department’s file that:

    ·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1);

    ·the nomination was made using the approved form and fee, as per r.2.73(3),(4) and (5);

    ·the nomination was not required to be accompanied by the applicable training contribution charge, as per r.2.73(5A) as it was lodged before 12 August 2018;

    ·the nomination was made in the Medium term stream as the nominated occupation of Fitter is a medium and long term strategic skills specified occupation in the relevant instrument, IMMI 18/048, as per r.2.73(6);

    ·the applicant identified the nominee, Mr Jamie Walsh, in the nomination, as per r.2.73(8);

    ·the nomination included the name of the occupation and the corresponding 6 digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination, as per r.2.73(9);

    ·the nomination included written certification that the applicant had not engaged in conduct that contravenes s.245AR(1) of the Act: r.2.73(12);

    ·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and

    ·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).

12. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.

    No adverse information known to Immigration

13. Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

14. The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

15. For these reasons, it is satisfied that the requirements of r.2.72(4) are met.

    Nominator is a standard business sponsor

16. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

17. The Tribunal has checked the Department’s records and is satisfied that the applicant is approved as an SBS until 10 July 2022.

18. For these reasons, the Tribunal finds that the requirements of r.2.72(5) are met.

    Payment of debt mentioned in s.140ZO

19. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act.

20. There is no evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. As discussed below, the Tribunal is satisfied that the applicant is not liable to pay a nomination training contribution charge.

21. For these reasons, the Tribunal finds that the requirements of r.2.72(5A) are met.

    Requirements for existing subclass 457 or subclass 482 visa holders

22. The criteria for approval of a nomination contain several requirements if a subclass 457 or subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:

    ·the applicant must list on the nomination each person granted a subclass 457 or subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);

    ·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl.482.223 (if the nomination is in the Short-term stream) or cl.482.232 (if the nomination is in the Medium-term stream): r.2.72(14).

23. The Department’s records indicate that the nominee, Mr Jamie Walsh, has never held a subclass 457 or 482 visa.

24. As the nominee is not the holder of a subclass 457 or subclass 482 visa, the requirements of r.2.72(6) and r.2.72(14) do not apply.

    Specified occupation

25. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.

26. The Tribunal finds that the nominated occupation of Fitter (General) (ANZSCO code 323211) are specified in the Medium Long Term stream in IMMI 18/048. The Tribunal is further satisfied that the occupation of Fitter (General) is not subject to any of the occupational caveats set out in the notes to that instrument.

27. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(8) are met.

    Position must be genuine and full-time

28. 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, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

29. The Tribunal accepts from the material provided, particularly the contract of employment between the nominee and applicant, that the position is a full time one.

30. The Tribunal also gives weight to the written evidence of the applicant’s Queensland State Manager, Mr Simon Howell, dated 20 April 2021, in which he makes the following points:

    Hydraulink Pty Ltd has been operating for 75 years, we specialise in hose and hydraulic services in the mining, agriculture, transport, forestry and marine industries. With over 400 service points throughout New Zealand, Australia and the Asia Pacific region. Operating from distribution centres with counter service and supported by mobile service units, Hydraulink is on call 24 hours a day, 7 days a week.

    …

    This position is required due to the lack of specifically experienced Maintenance Fitters available within the current labour market. This is an ongoing position due to the expansion of the company and client demand, in turn eliminating the need for this work to be outsourced, thus cutting out extra cost and downtime. This position has been offered to [the nominee] as we, Hydraulink, are not able to fill and employ an Australian citizen or permanent resident.

    …

    We have advertised the position extensively and found no suitable candidates who have not only the skill set or experience nor the willingness to travel to separate sites, for this reason we have recruited a non-citizen for the position. [The nominee] was initially referred to me by word of mouth we completed extensive reference checking from previous employers and offered the position confident that [he] will meet all our business operation requirements as per the nominated position.

    Additionally, Australian Citizens/Permanent resident tradespersons prefer to work as subcontractors, working for short periods of time and then moving on. This leaves us with a fluctuating workforce that makes it difficult to be sure we have the manpower with the required skills and experience, to meet our customers needs and ongoing business demands. It also means the standard of work ca vary, as different tradespersons with different skills and experience are employed at varying times. Having a full-time Maintenance Fitter on the payroll ensures that we can meet the expectation of our customers thus allowing management to focus on the future growth and expansion of the company.

    Having the availability to sponsor EXPERIENCED employees from overseas will not only boost our business with the ability to tender for larger contracts, but also provide our UNDERSKILLED Australian labour market the chance to be instructed by more experienced employees, upskilling the local labour market.

    I can confirm that the position of Maintenance Fitter has NOT been solely created for the purposes of facilitating the nominee’s stay in Australia. Finding, employing, and keeping an employee with the skills and knowledge required in the local area or who is willing to travel and live in the area has always been very difficult. If we could have successfully recruited from the local area we would have, this has not happened and in turn we have had to source an employee from overseas.

    Please see below how this position is consistent with the nature of the business with respect to our current business structure and in the context of where the position will be performed.

    We confirm that the tasks and duties of the nominated position are consistent with the tasks and duties as per ANZSCO 323211 – Maintenance Fitter demonstrated by the attached detailed position description and as below:

    ·Provide technical service and troubleshooting/breakdown support;

    ·Provide onsite inspections and quotations for customers;

    ·Repair and replace hydraulic hoses at customer sites as required;

    ·Develops maintenance planning strategies and schedules, coordinates and monitors the maintenance of all equipment;

    ·Conduct tests of mechanical equipment on site;

    ·Operate all hose assembly machinery and equipment;

    ·Identify and use appropriate fittings for fitting to specified hoses, as per customer specification;

    ·Carry out assemblies using a variety of hoses for industrial, and hydraulic, purposes;

    ·Perform high and low pressure testing procedures;

    ·Maintaining a safe and clean working environment;

    ·Ensure high levels of customer service in the Branch both internally and externally are maintained in a professional and diligent manner;

    ·Sonar 6 Implementation with ALL reports for Service Centre Manager and HSSTs;

    ·Data entry and allocation of service/install jobs in the company service module;

    ·Provide 24/7 day technical and back up support to HSSTs and customers when required;

    ·Provide 24/7 day support for HSSTs and customers…

    With respect to the genuine need for the nominated occupation please be advised that this full-time position is required to continue urgently and is highly relevant to the scope of our business operations. It is critical to the ongoing continued growth of the business.

    [The nominee’s] position within the company as a temporary sponsored employee will contribute to the staffing level required enabling the successful running of the company, and ultimately increasing the business demands, we are therefore anxious to secure his long-term employment.

    We recognise that longevity and competitiveness within the market depends on having properly skilled and experienced employees, we as most Australian businesses that are continuing to employ skilled and experienced employees to assist our operations.

    We therefore advise that there is a position and we have a genuine need for the nominated occupation (ANZSCO 323211 – Maintenance Fitter) and that the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that are provided to, or would be provided to, an Australian citizen or permanent resident if we were able to fill this position with an Australian citizen or permanent resident… Licensing is not required for this position.

31. The Tribunal has reviewed the Australia and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary and notes that the occupation of Maintenance Fitter is listed as a subset of Fitters (General), which comes within Occupational Unit Group 3232 of Metal Fitters and Machinists (Tribunal’s emphasis in italics):

    UNIT GROUP 3232 METAL FITTERS AND MACHINISTS

    METAL FITTERS AND MACHINISTS fit and assemble fabricated metal parts into products, set up machining tools, production machines and textile machines, and operate machining tools and machines to shape metal stock and castings.

    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.

    Tasks Include:

    ostudying drawings and specifications to determine suitable material, method and sequence of operations, and machine settings

    ofitting fabricated metal parts into products and assembling metal parts and subassemblies to produce machines and equipment

    ochecking fabricated and assembled metal parts for accuracy, clearance and fit using precision measuring instruments

    osetting guides, stops and other controls on machining tools, setting up prescribed cutting and shaping tools and dies in machines and presses, and setting controls for textile machines

    oforming metal stock and castings to fine tolerances using machining tools to press, cut, grind, plane, bore and drill metal

    ocutting, threading, bending and installing hydraulic and pneumatic pipes and lines

    opreparing pattern mechanisms to control the operation of textile machines used to spin, weave, knit, sew and tuft fabric

    odiagnosing faults and performing operational maintenance of machines, and overhauling and repairing mechanical parts and fluid power equipment

    omay erect machines and equipment on-site

    
    Occupations:

    323211 Fitter (General)
    323212 Fitter and Turner
    323213 Fitter-Welder
    323214 Metal Machinist (First Class)
    323215 Textile, Clothing and Footwear Mechanic
    323299 Metal Fitters and Machinists nec

    
    323211 FITTER (GENERAL)

    Fits and assembles metal parts and subassemblies to fabricate production machines and other equipment.

    Skill Level: 3

    Specialisations:

    Computer Numeric Control Setter
    Diesel Fitter-Mechanic
    Fitter-Machinist
    Fitter-Mechanic
    Maintenance Fitter
    Mechanic (Diesel and Heavy Earthmoving Equipment)
    Plant Mechanic

    …

1. The Tribunal notes that the duties listed in the applicant’s position description do not include all of those listed in the ANZSCO description above, but accepts that the ANZSCO description includes duties representative of all of the sub occupations listed within the Group, not just those of a Fitter – General. The Tribunal is satisfied that the duties of the nominated position are consistent with those of a Fitter General as per ANZSCO.

2. Based on the above, the Tribunal is satisfied that the position associated with the nominated occupation is genuine. It finds that r.2.72(10)(a) and (b) are met, and that r.2.72(10) is met as a whole.

   Employment under contract

3. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 13/067. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)). In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.

4. The Tribunal is satisfied that the nominated occupation of Fitter (General) is not specified in an instrument, and that the applicant has provided a copy of the contract of employment between it and the nominee dated 20 April 2021.

5. For these reasons, the Tribunal finds that the requirements of r.2.72(11) are met.

   Annual earnings

6. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033 (currently $53,900). Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:

   ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: r.2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.

   ·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.2.72(16)(a);

   ·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);

   ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and

   ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).

7. The current employment contract provides that the nominee will be paid a base salary of $68,000 per year plus superannuation. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of r.2.72(15) do not apply.

   Employment conditions

8. Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.

9. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: r.2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and r.2.72(18)(b) does apply. There is no evidence before the Tribunal to indicate that the applicant has engaged in discriminatory recruitment practices and thus the Tribunal finds that r.2.72(18)(b) is met.

10. Nor is there anything to indicate that the nominee’s employment conditions (other than in relation to earnings) will be less favourable than those for an Australian equivalent employee(s). The nominee’s employment contract specifically states that the leave provisions are in accordance with those set out in the National Employment Standards (NES) formulated by Fair Work Australia.

11. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(18)(a) are met.

    Labour Market Testing

12. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ (LMT) 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.

13. The Tribunal is satisfied that the applicant does not fall within the major disaster or skill and occupational exemptions in s.140GBB-140GBC, and there is no evidence that the Minister has determined that LMT would be inconsistent with a specified international trade obligation. The applicant is therefore required to meet LMT.

14. For these purposes, LMT 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 18/059 (this provides that, for nominations lodged after 18 March 2018 but before 12 June 2018, the period is 12 months prior to the nomination application being lodged).

15. In addition:

    ·the nomination must be accompanied by the evidence specified in s.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 (s.140GBA(3)(d)).

16. The evidence of LMT 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 of 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.

17. The Tribunal notes that the delegate was not satisfied that the above provisions had been met, for the following reasons:

    …

    I have considered the nature and extent of the advertising undertaken, and whether that advertising had the coverage and duration to sufficiently test the local labour market. Policy guidance in relation to these matters indicates that suitable advertising for this purpose would have the following characteristics:

    ●         be advertised in Australia

    ● be in English and include the title, or a description, of the position, the name of the approved sponsor or the name of the recruitment agency being used by the sponsor and the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold, currently AUD 142,000)

    ● at least two advertisements were published:

    ❍ on a national recruitment website (for example, jobactive.gov.au)

    A recruitment website ‘with national reach’ is a prominent or professional recruitment website that publishes advertisements for positions throughout Australia

    A general classifieds website is not an acceptable method

    ❍ in national print media

    ✃Print media with ‘national reach’ includes national newspapers or magazines that are published at least monthly and marketed throughout Australia.

    ❍         on national radio, or

    ✃Radio with ‘national reach’ includes radio programmes that are broadcast or syndicated nationally

    if the sponsor is accredited - on the businesses’ website or via a social media account

    ●         the position was advertised for at least 21 consecutive calendar days

    I have assessed the information provided by the applicant and I note that as per evidence provided:

    ● the advertisement did not include the information required to be included in the advertisement

    I acknowledge that you have provided Seek Tax Invoices dated 26 April 2017 and 19 September 2017. I note that the invoices state that the occupations advertised were 'Mobile Hose Service Technician' and 'Mobile Hose Service Technician - Trainee'., however, I note the nominated position for the purpose of this application is for Fitter (General) 323211.

    In the absence of a copy of the advertisement, I am unable to determine whether the advertisements were for the nominated occupation, Fitter (General) 323211.

    Furthermore, as there was no copy of the advertisment provided, I am unable to determine whether the advertisment was in English or stated the annual earnings of the position, which is a requirement in meeting labour market testing.

    Having considered all of the evidence provided I am not satisfied that the labour market testing undertaken demonstrates that a suitably qualified and experienced Australian worker is not readily available to fill the nominated position.

    Therefore subparagraph 140GBA(3)(d)(i) has not been met.

    …

18. The Tribunal has reviewed the Department’s file and is satisfied that the applicant provided evidence of LMT with its nomination application, being invoices from Seek.com for an advertisement placed on 19 September 2017 for a Mobile Hose Service Technician – Trainee, for a fee of $302.50; and an advertisement placed for a Mobile Hose Service Technician, on 26 April 2017, for a fee of $297. Both positions were listed as being based at Rocklea, Queensland (the location of the nominated position).

19. In the nomination application form, the applicant described the nominated position as follows:

    HSST SALES AND SERVICE TECHNICIAN

    …

    Responsibilities: Primary Objectives of this Position:
    To provide a quality Hose and Fittings Service to all accounts within a nominated territory to the highest standard possible
    Carry out regular sales visits to new and existing customers, conduct call cycle as agreed with manager, reports to be completed weekly
    Proactively drive business growth through hands on development of both new and existing customers.
    Building and maintaining effective relationships with customers and direct accounts.

    Main tasks: Job Specific and Functional Skills
    Capacity to trouble shoot hydraulic and related mechanical engineering problems effectively
    Well developed interpersonal skills
    Sound computer literacy eg Microsoft Office
    Fluent in English read or write or speak
    Ability to increase revenue through sound business development skills
    Commercially aware
    Ability to lift minimum of twenty five kg
    Service Vehicle Operation
    Provide a quality hose and fittings service to customers.
    Liaising with other Mobile Service Technicians when required to ensure customers requirements are met to agreed standards
    Operate a mobile service vehicle providing an on site complete repair service
    Ensure adequate levels of inventory are maintained by performing daily and monthly stock replenishment from the warehouse
    Carrying out inventory transactions in a timely manner to ensure that inventory accuracy levels are maintained at a high level as instructed
    The general upkeep and housekeeping of the Company Vehicle and maintain high standards of presentation
    Perform daily, weekly and month end procedures as specified
    Conduct regular stock takes at agreed timeframes
    Sales
    Provide written quotations for customers using set templates
    Conduct regular invoicing of work in a timely manner using tools provided
    Proactively increasing revenue generating business through the development of new and existing customers.
    Team
    Attend set meetings with direct manager as required
    Demonstrate high level of commitment and support to both the company and the team.
    …

20. In response to the prompt to provide ‘Other information about the position, including information about why this position cannot be filled from the local labour market,’ the applicant responded: ‘Unable to recruit Australians after several attempts to fill the positions through advertising.’

21. In the specific LMT section of the nomination application form, the applicant indicated that it had undertaken LMT as required, having placed 2 ads on the Seek website for a Mobile Hose Service Technician, each of which ran for 30 days in April 2017 and September 2017. It was stated that the advertisements were in English and advertised full time positions but did not include the salary for the position(s).

22. The applicant further indicated that it had 20 responses to its ads but that:

    Applicants lacked the right fit and skill set. We originally advertised for a fully qualified Hose Service Technician in April when we couldnt find anyone we decided to advertise for the trainee role and recruit someone to bring on and Train up through our in house training.

23. The Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3, as it was at the time the nomination application was lodged), which provides the following detailed guidelines on the evidence of LMT to be provided with an applicant’s nomination application:

    4.7.5. Meeting LMT requirements (where applicable)

    Sub-section 140GBA(3) provides that the LMT condition can be considered met if:

    ·            the approved sponsor has undertaken LMT for the nominated position within the required period – see Required evidence of LMT below;

    ·            the nomination is accompanied by evidence of LMT, including any advertising, and fees paid for that advertising as outlined in sub-sections 140GBA(5) and (6) – see Required evidence of LMT below; and

    ·            having regard to the evidence and any other information provided, the delegate can be satisfied that there is no suitably qualified and experienced Australian worker or eligible temporary visa holder readily available to fill the nominated position – see No suitably qualified/experienced Australian below.

    These requirements are each discussed in more detail below.

    4.7.5.1. Required period for LMT

    The approved sponsor must have undertaken LMT:

    ·            within 6 months before lodging the application as specified in a legislative instrument (or 12 months if application was lodged prior to 18 June 2018); or

    · since any redundancies or retrenchments have occurred - if any Australian workers have been made redundant or retrenched from the same or similar occupations in the business of the sponsor (or an associated entity) in the four months prior to lodgement of the application – see sub-section 140GBA(4A).

    Note: If the sponsor or an associated entity has made any Australian workers redundant or retrenched from positions in the nominated occupation in a business in the previous 4 months, information about these redundancies or retrenchments must also be provided – see sub-paragraph 140GBA(3)(b)(ii).

    4.7.5.2. Required evidence of LMT

    Sponsors must provide evidence of the approved sponsor’s attempts to recruit suitably qualified and experienced Australian citizens or permanent residents to the position/ similar positions. This includes evidence of any advertising and the details of fees/other expenses paid or payable for that advertising (if payment was required), for example, details of website or newspaper advertising undertaken, and any associated fees.

    The table below outlines the type of evidence expected to be provided under policy depending on whether fees and/or expenses were paid for the advertising or not.

Scenario	Evidence Type	What needs to be provided?
Nomination form indicates fees were paid for advertising	Advertising	A copy of the advertisement(s)*
	Fees paid	Receipt(s) for any fees paid
Nomination form indicates no fees paid for advertising	Advertising	A copy of the advertisement(s)*
	Fees paid	Not required

Evidence of LMT must include:

·            evidence of any advertising (paid or unpaid) of the position and any similar positions:

oIf a similar ad was placed in multiple media formats, with the details of how widely the position has been advertised specified in the nomination form, only one copy of the advertisement is required to show the department the content was published.

oA copy of a domestic recruitment summary table in lieu of actual advertisements is no longer considered acceptable evidence under policy.

oIf an employer is required to lodge a new nomination for the same nominee for their existing visa period, because of a market salary decrease or a change in business structure that impacts current sponsorship arrangements, then sponsors are able to provide the same LMT for this position (which was provided with the original nomination), and a statement explaining that the visa holder is remaining in the same position. Note: this does not apply to general ‘repeat 457s/TSSs’ with employers expected to test the local labour market before re-engaging a 457/TSS holder for a further period.

oAdvertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party) - there is no requirement that the sponsor placed the advertisement themselves.

and

·            details of the fees and any other expenses paid (or payable) for that advertising:

oif an applicant provides a document containing details of any advertising expenses, delegates may consider this requirement met with no further enquiry

oif no evidence of advertising expenses has been provided, delegates must ascertain whether there were any fees payable before moving to a decision on the application.

oSponsors may also wish to provide additional information regarding their attempts to recruit an Australian worker. If a sponsor chooses not to include any other evidence, delegates are not, however, to treat the application less favourably merely because of this fact.

Five examples of such additional information are:

·            information about the sponsor’s involvement in relevant job and career expositions

·            details of fees and expenses paid (or payable) for any other types of recruitment attempts

·            details of the results of such recruitment attempts including details of any positions filled as a result

·            copies of, or references to, any research relating to labour market trends generally, or in relation to the nominated occupation, that has been released in the four months prior to the application

·            expressions of support from Commonwealth, State/Territory government authorities with responsibility for employment matters.

Note:

·            If the sponsor or an associated entity has made any Australian citizen or permanent resident workers redundant or retrenched from positions in the nominated occupation in a business in the previous 4 months, information about these redundancies or retrenchments must be provided.

· Section 140GBA(5)(b)(iii) provides for other types of evidence to be specified by legislative instrument. Currently, however, there is no legislative instrument for this purpose.

4.7.5.3. No suitably qualified/experienced Australian

Under paragraph 140GBA(3)(d)(i), officers must be satisfied that ‘a suitably qualified and experienced Australian worker is not available to fill the nominated position’. Under policy, in the absence of contrary evidence, officers can consider this requirement met if the evidence of LMT provided demonstrates that the advertising undertaken had sufficient coverage and duration to sufficiently test the local labour market.

Subject to the alternative arrangements outlined below for specific types of nominated positions – see Situations in which alternative evidence of LMT is acceptable below, advertising is generally considered sufficient to determine that an Australian worker is not available, under policy, if:

·            the nominated position has been advertised in Australia;

·            the advertisement was in English and included the following information:

othe title, or a description, of the position;

othe name of the approved sponsor or the name of the recruitment agency being used by the sponsor; and

othe annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold, currently AUD 142,000);

·            at least two advertisements were published:

oon a national recruitment website (e.g. jobactive.gov.au)

§      A recruitment website ‘with national reach’ is a prominent or professional recruitment website that publishes advertisements for positions throughout Australia.

§      A general classifieds website or an advertisement solely through a social media notification, such as Twitter or Instagram is not an acceptable method.

oin national print media

§      Print media with ‘national reach’ includes national newspapers or magazines that are published at least monthly and marketed throughout Australia.

oon national radio, or

§      Radio with ‘national reach’ includes radio programmes that are broadcast or syndicated nationally.

oif the sponsor is accredited – on the businesses’ website.

Despite the above evidence being provided, officers may still have concerns about whether this requirement is met – see Concerns about the extent or nature of LMT conducted below.

Note:

·            If the advertisement is published on a website it is expected that the advertisement would have ‘remained live’ for at least 21 consecutive calendar days.

·            If the advertisement is published in print media or on radio, it is expected that applications or expressions of interest for the advertised position were accepted for at least 21 consecutive calendar days.

·            Advertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party, such as a recruitment agency) - there is no requirement that the sponsor placed the advertisement themselves.

Situations in which alternative evidence of LMT is acceptable under policy

Under policy, alternative evidence can be considered sufficient to demonstrate that ‘a suitably qualified and experienced Australian worker is not available to fill the nominated position’, where the nominated position is a position:

·            in relation to which the nominee has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research;

·            held by an existing TSS or subclass 457 visa holder for which a new nomination has been lodged solely because:

othe annual earnings that will apply to the nominee have changed; or

oa change in business structure has resulted in the nominee’s employer lodging a new application to be approved as a standard business sponsor.

Such evidence could include:

oa submission explaining via the specific individual nominated is the only person, or one of very limited persons, who could undertake the nominated position and no Australian worker is available;

oLMT undertaken earlier than six months prior to lodging the nomination (i.e. from when the position was first advertised and the subclass 457 visa holder was originally hired).

Concerns about the extent or nature of LMT conducted

Cases of concern where a refusal may be appropriate on the basis that the LMT condition has not been satisfied, despite evidence of LMT being provided as required, include situations where:

·            the advertising undertaken does not appear to have been for the same position as that nominated;

·            the nominee themselves advertised the position;

·            the terms and conditions advertised to the local market appear to be significantly less favourable than those being offered to the nominee or that in reality would be offered to an equivalent Australian worker – i.e. positions advertised were only part time/casual and/or the salary advertised was significantly less; or

·            the contract pre-dates the LMT evidence (i.e. the nominee was offered the job before it was advertised).

Important: Where there are concerns regarding the nature or extent of advertising and that this requirement may not be met, officers must contact Program Management before proceeding to refuse a nomination on this basis, unless otherwise advised.

1. The Tribunal notes that in the ordinary case, policy is a relevant factor for it to take into account.[1]  Whether the Tribunal should apply that policy or interpretative guidelines in a particular case will depend on a range of factors, including whether it is exercising a discretionary or non-discretionary power and whether the nature of the power suggests an emphasis on consistency or a focus on the circumstances of the individual case. 

   [1] See, e.g., Hneidi v MIAC [2009] FCA 983 (Besanko J, 2 September 2009), at [37].

2. When exercising a discretionary power the Tribunal should have regard to policy, as a relevant consideration. However, whether exercising a discretionary or non-discretionary power, policy is not binding on the Tribunal.[2]  In Re Drake and MIEA (No 2) (Re Drake No 2) Brennan J stated:

   the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case.[3]

   [2] See, e.g., Qiao v MIAC [2008] FMCA 380 (Orchiston FM, 28 March 2008) at [29] and Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (Davies J, 12 December 1995).

   [3] (1979) 2 ALD 634 at 644.

3. Where exercising a discretionary power the Tribunal should have regard to any relevant lawful policy.  In Re Drake No 2[4] the Administrative Appeals Tribunal (AAT) was exercising a discretionary power (deportation). Justice Brennan, sitting as the President of that Tribunal, stated:

   In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.[5] 

   [4] (1979) 2 ALD 634.

   [5] Re Drake and MIEA (No 2 ) (1979) 2 ALD 634 at 642.

4. While the Tribunal cannot deprive itself of the freedom to give policy no weight when exercising a discretionary power in a particular case, there are substantial reasons which favour cautious and sparing departure from Ministerial policy, particularly if Parliament had scrutinised and approved the policy.[6] As Brennan J stated in Re Drake No 2:

   Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.[7]

   [6] Re Drake and MIEA (No 2) (1979) 2 ALD 634 at 644.

   [7] (1979) 2 ALD 634 at 639. In Hneidi v MIAC [2010] FCAFC (Spender, Emmett and Jacobson JJ, 5 March 2010), the Court stated at [49] that these remarks were confined to a discussion of the place of Ministerial policy in the review of administrative action.

5. However, the Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”.[8] The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[9]  But where the policy is more narrow or restrictive than the legislation it will not be a lawful policy and reliance on it is likely to result in a jurisdictional error.[10] 

   [8] Drake v MIEA (1979) 24 ALR 577 per Bowen CJ and Deane J at 590.

   [9] Re Drake and MIEA (No 2 ) (1979) 2 ALD 634 at 642.

   [10] Lobo v MIMIA [2003] FCAFC 168 (French, Sackville and Hely JJ, 8 August 2003) at [63] - [64].

6. It is clear that the Tribunal must not treat such guidance as determinative and must always have regard to the terms of the legislation and the individual circumstances of the case.[11]

   [11] In Xue Fan v MIAC [2010] FMCA 490 (Burnett FM, 9 July 2010) at [22], the Court observed that PAMs are not binding, they being nothing more than procedural and policy guidance to officers applying the Migration Act and Regulations. The Court also noted, with reference to s.15AB Acts Interpretation Act 1901, that such guidelines do not fall within the class of extrinsic material to which regard may be had to assist in interpreting the legislation.  Section 15AB(1) provides that “if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material”.  Section 15AB(2) then provides that, “[w]ithout limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes” materials such as explanatory memoranda and relevant reports laid down before either House of Parliament.    

7. As noted above, PAM3, issued by the Department, is a document that contains guidelines to the Department’s interpretation and application of the Act and Regulations, as well as procedures to be followed by Departmental Officers. Much of PAM3 can properly be categorised as an opinion as to the interpretation of the legislation, rather than as ‘policy’. Unlike Directions made under s.499 of the Act, PAM3 is not a legislative instrument and does not have the force of Ministerial Direction given under s.499.

8. In He v MIAC[12], the Federal Magistrates Court considered the use of PAM3 in determining what is “a reasonable period” in the context of the definition of “remaining relative” in r.1.15 of the Regulations.  The Court stated that:

   A distinction may be drawn between a policy made at the level of government, that is at the political level, and a policy made at the departmental level (see Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 163, and Hneidi v Minister for Immigration & Citizenship [2009] FCA 983 (“Hneidi”) at [41] per Besanko J. His Honour also said:

   “Different considerations may apply to the review of each kind of policy…”
   …

   … [PAM3 as current in 2000] is at least, as its name suggests, intended to provide advice about procedures.

   The advice appears to be directed to “officers” (in context presumably officers of the Minister’s Department). It is not directed to Tribunal members (see s.396 of the Act).

   But, ultimately, nothing turns on this point because the Tribunal is entitled to have regard to “policy”, both government (at the political level) and administrative (departmental).

   Further, there is no dispute that, while a policy (as distinct from a policy expressed in, or as, a regulation) is not binding on a decision maker, a policy applicable to the case is a relevant consideration ….. In Hneidi at [37] the Court said: “… In the ordinary case, a policy is a relevant factor for the Tribunal to take into account.”[13]

   [12] [2009] FMCA 1142 (Nicholls FM, 11 December 2009).

   [13] He v MIAC [2009] FMCA 1142 (Nicholls FM, 11 December 2009) at [95] – [104].

9. As noted by the Court in Durzi v MIMIA, when considering the issue of the role of PAM3 in relation to the interpretation of r.1.15:

   PAM3 is simply a document which brings a number of relevant facts to the attention of the decision maker to which the decision maker may or may not have regard in considering whether an applicant has brought himself or herself within the criteria required in reg 1.15.  It has no legislative effect.  It does not construe reg 1.15.  A decision maker is not bound to have regard to it or if a decision maker has regard to it the decision maker commits no error. [14]

   [14] [2006] FCA 1767 (Lander J, 19 December 2006) at [49].

10. This view was restated in Moller v MIAC:

    [PAM3’s] status is merely a set of administrative guidelines, and its contents cannot be elevated into legally relevant considerations or binding representations (see Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 at [27]-[29] and cases there cited). Nor can its legal interpretations or restatements be applied by the Migration Review Tribunal or this Court as substitutes for the regulations, which must be construed according to their own language under principles of statutory interpretation.[15]

    [15] [2007] FMCA 168 (Smith FM, 28 February 2007) at [14].

11. Similarly, the court in Sakhno v MIAC stated that:

    … policy, not matter how clearly set out, in the Procedures Advice Manual 3 of the department cannot change or amend the migration regulations, if what is set out in the policy document is not in accordance with the migration regulations, then it is wrong. It is the regulation that must be preferred to the policy document.[16]

    [16] [2007] FMCA 1492 (Scarlett FM, 6 September 2007) at [55].

12. Where PAM3 ‘policy’ is not consistent with, or does not accurately reflect the regulations, the policy is unlawful and the regulation must prevail.[17] There is thus a need for caution in applying PAM3 or MSIs. The decision-maker must be satisfied that it is not inconsistent with or does not go beyond the regulations. In short, the decision-maker must bring his or her consideration back to the terms of the regulations.

    [17] See, e.g., Alimi v MIAC [2007] FMCA 1520 (Riley FM, 16 October 2007), Total Eye Care Australia Pty Ltd v MIAC [2007] FMCA 281 (McInnis FM, 8 March 2007), Feng v MIAC [2011] FMCA 576 (Barnes FM, 27 July 2011) at [70] – [72]..

13. In this case, the Tribunal acknowledges that the evidence of LMT provided by the applicant with the nomination application did not fulfil all of the requirements set out in the relevant section of PAM3 that was in force at the time that the nomination was lodged on 11 May 2018. Specifically, as identified by the delegate, the applicant:

    ·did not provide copies of the text of the advertisements lodged with Seek in April 2017 and September 2017.

14. As a result, the delegate found that she could not be satisfied that the advertisements were in English, and whether they were for a Fitter (General).

15. As noted above, the Tribunal has reviewed the evidence provided by the applicant in the nomination itself, and the evidence that accompanied it. It is satisfied that:

    ·the applicant advertised the nominated position twice in the 12 months prior to lodging the nomination application and provided the invoices for the fees for this;

    ·the advertisements used the terminology for the nominated position used within the applicant’s business (Maintenance Hose Fitter Technician), rather than Fitter (General);

    ·the advertisements were in English and identified the job title, employer and employment location but did not provide a salary range;

    ·the advertisements were run on the Australian Seek website for 30 days each; and

    ·the advertisements generated 20 responses, but ‘applicants lacked the right fit and skill set. We originally advertised for a fully qualified Hose Service Technician in April [2017] when we couldn’t find anyone we decided to advertise for the trainee role and recruit someone to bring on and train up through our in-house training.’

16. The Tribunal considers that it is clearly evident from the above information that the applicant did in fact satisfy most of the LMT requirements in PAM3.

17. The Tribunal also notes that PAM3 requires more detail than is required in the relevant legislation itself, given s.140GBA(6) provides that the information that has to accompany the nomination:

    (a)must include details of:

    (i)any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor; and

    (ii)fees and other expenses paid (or payable) for that advertising; and

    (b)may also include other information, such as:

    (i)information about the approved sponsor’s participation in relevant job and career expositions…

18. The Tribunal is satisfied that s.140GBA(6) itself does not impose a requirement to provide the text of the advertisement(s) or to list the salary range applicable to the nominated position being advertised. While the Tribunal considers that it would probably be preferable for an applicant to provide this information in most cases, it is not legally required. In any case, the Tribunal accepts that, despite this, the advertisements generated 20 responses.

19. In the Tribunal’s view, the purpose of the detail required in PAM3 on LMT is aimed at ensuring that any LMT carried out by an applicant is transparent and genuine, and that it is clear at the time of the nomination application that the applicant has properly tested that there is a lack of suitably qualified Australian candidates.

20. In this case, the Tribunal is satisfied that the applicant clearly identified that this was the case. The Tribunal is further satisfied that the applicant’s LMT was genuinely undertaken, and that the lack of suitably qualified Australian candidates is genuine also, given that an Australian Government Department of Jobs and Small Business Skills Shortage report on Fitters (including Fitters (general)) for Queensland, issued November 2018 (the most recent survey located by the Tribunal, Tribunal emphasis in bold), states that ‘while shortages of fitters are not evident at the state level, there does appear to be some mismatch in labour supply. A few employers were able to choose between multiple suitable applicants, while the remainder did not attract enough suitable applicants to fill all of their vacancies… only 14% of applicants were considered to be suitable. The main reasons applicants were not considered to be suitable was because they: did not hold a relevant qualification or lacked the required technical skills or experience in the occupation; lacked the specific skills sought by the employer; or did not live within a reasonable commuting distance of the role…’

1. The Tribunal also gives weight to the written evidence of the applicant’s Queensland State Manager, Mr Simon Howell, dated 20 April 2021, in which he makes the following points:

   ‘Hydraulink Pty Ltd has been operating for 75 years, we specialise in hose and hydraulic services in the mining, agriculture, transport, forestry and marine industries. With over 400 service points throughout New Zealand, Australia and the Asia Pacific region. Operating from distribution centres with counter service and supported by mobile service units, Hydraulink is on call 24 hours a day, 7 days a week.
   …
   This position is required due to the lack of specifically experienced Maintenance Fitters available within the current labour market. This is an ongoing position due to the expansion of the company and client demand, in turn eliminating the need for this work to be outsourced, thus cutting out extra cost and downtime. This position has been offered to [the nominee] as we, Hydraulink, are not able to fill and employ an Australian citizen or permanent resident.

   We have advertised the position extensively and found no suitable candidates who have not only the skill set or experience nor the willingness to travel to separate sites, for this reason we have recruited a non-citizen for the position. [The nominee] was initially referred to me by word of mouth we completed extensive reference checking from previous employers and offered the position confident that [he] will meet all our business operation requirements as per the nominated position.

   Additionally, Australian Citizens/Permanent resident tradespersons prefer to work as subcontractors, working for short periods of time and then moving on. This leaves us with a fluctuating workforce that makes it difficult to be sure we have the manpower with the required skills and experience, to meet our customers needs and ongoing business demands. It also means the standard of work ca vary, as different tradespersons with different skills and experience are employed at varying times. Having a full-time Maintenance Fitter on the payroll ensures that we can meet the expectation of our customers thus allowing management to focus on the future growth and expansion of the company.

   Having the availability to sponsor EXPERIENCED employees from overseas will not only boost our business with the ability to tender for larger contracts, but also provide our UNDERSKILLED Australian labour market the chance to be instructed by more experienced employees, upskilling the local labour market.

   I can confirm that the position of Maintenance Fitter has NOT been solely created for the purposes of facilitating the nominee’s stay in Australia. Finding, employing, and keeping an employee with the skills and knowledge required in the local area or who is willing to travel and live in the area has always been very difficult. If we could have successfully recruited from the local area we would have, this has not happened and in turn we have had to source an employee from overseas.

2. Given the above, the Tribunal is satisfied that that applicant meets the LMT requirements in s.140GBA(3)(a) to (d) and thus meets s.140GBA(3) as a whole.

   Nomination training contribution charge

3. Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s.140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s.7 of the Migration (Skilling Australians Fund) Charges Act 2018, and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018. Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s.140GB(2)(aa).

4. The Tribunal finds that as the nomination in this case was lodged on 12 April 2018, prior to 12 August 2018, the applicant is not liable to pay a nomination training contribution charge.

5. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

   DECISION

6. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

   Alison Mercer
   Member

   
   

   ATTACHMENT 1 - 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)…

   ATTACHMENT 2 - Extracts from the Migration Act 1958

   Section 140GBA    Labour market testing—condition

   Scope

   (1) This section applies to a nomination by an approved sponsor, under section 140GB, if:  

   (a)  the approved sponsor is in a class of sponsors prescribed by the regulations; and

   (b)  the sponsor nominates:

   (i)  a proposed occupation for the purposes of paragraph 140GB(1)(b); and

   (ii)  a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and

   (c)  it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the sponsor to satisfy the labour market testing condition in this section, in relation to the nominated position.

   (2)  For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.

   Labour market testing condition

   (3)  The labour market testing condition is satisfied if:

   (a)  the Minister is satisfied that the approved sponsor has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and

   (b)  the nomination is accompanied by:

   (i)  evidence in relation to that labour market testing (see subsections (5) and (6)); and

   (ii)  if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the approved sponsor — information about those redundancies or retrenchments; and

   (d)  having regard to that evidence, and information (if any), the Minister is satisfied that:

   (i)  a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and

   (ii)  a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.

   (4)  For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation.

   (4A)  Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments.

   Evidence of labour market testing

   (5)  For the purposes of subparagraph (3)(b)(i), the evidence in relation to the labour market testing:

   (a)  must include information about the approved sponsor’s attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions (see also subsection (6)); and

   (b)  may also include other evidence, such as:

   (i)  copies of, or references to, any research released in the previous 4 months relating to labour market trends generally and in relation to the nominated occupation; or

   (ii)  expressions of support from Commonwealth, State and Territory government authorities with responsibility for employment matters; or

   (iii)  any other type of evidence determined by the Minister, by legislative instrument, for this subparagraph.

   (6)  For the purposes of paragraph (5)(a), the information mentioned:

   (a)  must include details of:

   (i)  any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor; and

   (ii)  fees and other expenses paid (or payable) for that advertising; and

   (b)  may also include other information, such as:

   (i)  information about the approved sponsor’s participation in relevant job and career expositions; or

   (ii)  details of any other fees and expenses paid (or payable) for any recruitment attempts mentioned in paragraph (5)(a) (including any participation mentioned in subparagraph (i) of this paragraph); or

   (iii)  details of the results of such recruitment attempts, including details of any positions filled as a result.

   (6A)  If the approved sponsor elects to provide other evidence and information as mentioned in paragraphs (5)(b) and (6)(b), the Minister may take that evidence and information into account. But if the approved sponsor elects not to provide such other evidence or information, the Minister is not to treat the nomination less favourably merely because of that fact.

   Definitions

   (7)  In this section:

   associated entity has the same meaning as in Part 2A of the regulations.

   Australian permanent resident means an Australian permanent resident within the meaning of the regulations.

   eligible temporary visa holder: a person is an eligible temporary visa holder in relation to a nomination by an approved sponsor if, at the time when the nomination is made:

   (a)  the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and

   (b)  the person is employed in the agricultural sector by the approved sponsor (or an associated entity of the approved sponsor); and

   (c)  the temporary visa does not prohibit the person from performing that employment.

   labour market testing, in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position.