IDENTITY STUDIO (AUST) PTY LTD (Migration)

[2024] AATA 806

IDENTITY STUDIO (AUST) PTY LTD (Migration) [2024] AATA 806 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  IDENTITY STUDIO (AUST) PTY LTD

CASE NUMBER:  2103133

HOME AFFAIRS REFERENCE(S):          BCC2020/1413845

MEMBER:Peter Emmerton

DATE:2 April 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 02 April 2024 at 12:30pm

CATCHWORDS

MIGRATION – approval of a nomination – labour market testing – job advertisements within the prescribed 4 months prior to application – updated financial information – advertisements indicating the salary on offer – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 140

Migration Regulations 1994, rr 2.72, 2.73

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 Immigration to refuse to approve a nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval of the nomination on 22 April 2020. The delegate decided not to approve the nomination on the basis that the applicant had not met the requirements of 140GBA(3)(aa) as they had not undertaken the labour market testing in the required manner.

3. The applicant represented by Mr Anthony Smith, Managing Director, appeared before the Tribunal on 2 April 2024 in a combined hearing with case number 2106101, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kevin Sebastian Quezada Lillo, the visa applicant.

4. For the following reasons, the Tribunal concludes the decision in review must be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

6. The Tribunal has read and carefully considered the evidence previously presented to the delegate and the Department.

7. The Tribunal has read and carefully considered the evidence subsequently presented to it.

   • Department refusal decision dated 25 February 2021
   • Recruitment payment summary
   • ASIC records
   • Financial Statements FY 2021, FY 2022
   • Organisational Chart
   • Letter from Managing Director regarding sponsorship, dated 20 October 2023
   • Employment Contract signed and dated 10 October 2023
   • Advertising
   • Advertising expenses
   • IELTS report
   • Seek Invoice

   Labour Market Assessment (LMT)

8. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036. It is noted the nomination date was 22 April 2020.

9. Unless the person is exempt under section 140GBB or 140GBC - the labour market testing condition under section 140GBA must be satisfied for a person’s nomination to be approved.

10. In this case the person is not exempted by:

    ●          section 140GBB - Major Disaster Exemption - as the Minister has made no such

    exemption in this case; or

    ● section 140GBC - Skill and Occupational Exemptions - as there is currently no legislative instrument for this purpose there are no such exemptions

11. The labour market testing conditions under section 140GBA must therefore be satisfied if the person is not exempt. Subsection 140GBA(1)(c) provides that section 140GBA applies to a nomination by a person under section 140GB, if it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the person to satisfy the labour market testing condition in this section, in relation to the nominated position. The person is not in this case exempt in relation to labour market testing conditions imposed by section 140GBA.

    Labour market testing condition

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

    (a) the Minister is satisfied that the person 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

    (aa) the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and

    (b) the nomination is accompanied by:

    (i) evidence in relation to that labour market testing of a kind determined under subsection (6A); 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 person - 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. The period must not start earlier than 4 months before the nomination is received by the Minister.

12. As stated in (4), The period within which labour market testing is required in relation to a nominated occupation that is specified in the relevant legislative instrument must not be more than four months prior to the application, unless the nominated occupation is a ‘select occupation’ as specified in the relevant legislative instrument. It is not so stated in the relevant legislative instrument.

13. As the nominated occupation is not a 'select occupation', the labour market testing must have been undertaken in the specified period. That is within the 4 months prior to the application. In the nomination application, the applicant stated they have undertaken labour market testing in relation to this nominated occupation from 7 April 2017 for over 6 months. It is noted the application date is 22 April 2020. This was confirmed during the hearing. No evidence was presented prior to the hearing to indicate advertising had occurred within the prescribed 4 month prior to application. The Tribunal enquired at the hearing if further advertising had taken within 4 months of the application. The nominator agreed it had not occurred.

14. It is clear the advertisement occurred more than four months before the application was lodged in contravention of the legislative requirements in section 140GBA.

15. Additionally, the relevant instrument states that the following details of the position must be included in the advertisement:

    (a) the title or a description of the position;

    (b) the skills or experience required for the position;

    (c) the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;

    (d) the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.

16. The intended salary stated in the application was $53,900 plus the Superannuation Guarantee. The revised salary is now stated in the latest Employment Agreement as $80,000 plus the Superannuation Guarantee. In either circumstance as the intended annual earnings are below $96,400.00 AUD the advertisement for the job must stipulate the salary. The Tribunal has a copy of the advertisement which does not indicate the salary on offer. It did not receive any other version of the advertisement prior to the hearing with the salary stipulated. Under questioning at the hearing, the nominator agreed that the advertisement had not included the salary as required nor did any later advertising take place.

17. The Tribunal having considered all the evidence presented to the delegate and the Tribunal is unable to be satisfied the labour market testing was completed in the manner required. Therefore, subparagraph 140GBA(3)(aa) has not been met. Subsequently paragraph 140GBA(3)(a) has not been met.

18. Consequently, the applicant does not satisfy the labour market testing conditions and section 140GBA of the Migration Act is not met.

19. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

20. As the applicant does not satisfy the labour market testing condition, the Tribunal is not satisfied that the applicant meets section 140GBA of the Migration Act. The Tribunal has not assessed the applicant against the prescribed criteria as set out in regulation 2.72.

    DECISION

21. The Tribunal affirms the decision not to approve the nomination.

    Peter Emmerton
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

    (1)This regulation applies in relation to a person who:

    (a)is any of the following:

    (i)       a standard business sponsor;

    (ii)      a person who has applied to be a standard business sponsor;

    (iii)     …

    (iv)    …

    (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

    (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

    (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

    (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

    (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

    Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

    (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (5)The Minister is satisfied that:

    (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

    (b)…

    (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

    (6)If the nominee holds:

    (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)a Subclass 482 (Temporary Skill Shortage) visa;

    the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

    (7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (8)The Minister is satisfied that:

    (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

    (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

    (ii)      …; and

    (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

    (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

    (a)whether the occupation is:

    (i)       a short term skilled occupation; or

    (ii)      a medium and long term strategic skills occupation; and

    (b)either:

    (i)       the 6-digit ANZSCO code for the occupation; or

    (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

    (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

    (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

    (i)       the person who nominated the occupation;

    (ii)      the nominee;

    (iii)     the occupation;

    (iv)    the position in which the nominee is to work;

    (v)     the circumstances in which the occupation is undertaken;

    (vi)    the circumstances in which the nominee is to be employed in the position.

    (10)The Minister is satisfied that the position associated with the occupation is:

    (a)genuine; and

    (b)a full-time position.

    (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (11)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is not an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

    (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

    (12)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

    (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

    (14)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

    (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

    the person has provided evidence to the Minister that the nominee satisfies:

    (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

    (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

    (15)Subject to subregulation (16), if:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

    the Minister is satisfied that:

    (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

    (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

    (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

    (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

    (g)either:

    (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

    (ii)      it is reasonable to disregard any such information.

    (16)However:

    (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

    (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

    (ii)      it is reasonable in the circumstances to do so; and

    (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

    (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

    (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

    (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

    (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

    (a)either:

    (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)      it is reasonable to disregard any such information; and

    (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

    (19)…