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
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).
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.
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.
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.
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:
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
HYDRAULINK PTY LTD (Migration) [2021] AATA 2421
Case
[2021] AATA 2421
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal (AAT) reviewed a decision concerning a nomination for a Subclass 482 visa under the Medium-term stream. The applicant, Hydrulink Pty Ltd, sought to have its nomination approved. The Tribunal was required to determine whether the applicant met the various criteria prescribed by the Migration Regulations 1994 for the approval of such a nomination.
The legal issues before the Tribunal included whether the applicant was an approved standard business sponsor, whether the nomination was made in accordance with the prescribed process, whether there was any adverse information known to Immigration about the applicant or associated persons, and whether the nominated occupation was specified in the relevant legislative instrument. Additionally, the Tribunal had to consider if the nominee, Mr Jamie Walsh, had previously held a Subclass 457 or 482 visa, as this would trigger specific requirements regarding the listing of family members and language proficiency. The Tribunal also examined the requirements related to the payment of any nomination training contribution charge and the specified occupation's correspondence with the ANZSCO code.
The Tribunal found that Hydrulink Pty Ltd met all the applicable criteria for the nomination to be approved. It was satisfied that the nomination was made using the approved form and fee, lodged before the training contribution charge became applicable, and correctly identified the nominated occupation as a medium and long-term strategic skills occupation. The Tribunal also confirmed that the nominee was identified, and the nomination included all necessary details such as the occupation code, location, proposed period of stay, and annual turnover. Furthermore, the Tribunal was satisfied that there was no adverse information known to Immigration about the applicant or associated persons, that Hydrulink Pty Ltd was an approved standard business sponsor, and that no nomination training contribution charge debt was owed. Crucially, as Mr Walsh had not previously held a Subclass 457 or 482 visa, certain regulatory requirements did not apply.
Consequently, the Tribunal set aside the original decision not to approve the nomination and substituted a new decision approving the nomination.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the 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 Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73. 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). For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.No adverse information known to Immigration Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
Decision
Reasons for decision
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.DECISION The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.Alison MercerMemberATTACHMENT 1 - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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 1958Section 140GBA Labour market testing—conditionScope(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.
Ratio Decidendi
Legal Principle Established
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.No adverse information known to Immigration Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 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. For these reasons, it is satisfied that the requirements of r.2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The Tribunal has checked the Department’s records and is satisfied that the applicant is approved as an SBS until 10 July 2022. For these reasons, the Tribunal finds that the requirements of r.2.72(5) are met. Payment of debt mentioned in s.140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s.140ZO of the Act. There is no 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. 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 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). The Department’s records indicate that the nominee, Mr Jamie Walsh, has never held a subclass 457 or 482 visa. 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 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.