IT&T Pty Ltd (Migration)

IT&T Pty Ltd (Migration) [2024] AATA 2399 (6 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  IT&T Pty Ltd
REPRESENTATIVE:  Mr Imran Khan (MARN: 1680646)
CASE NUMBER:  2110565
HOME AFFAIRS REFERENCE(S):          BCC2020/2331451
MEMBER:Penelope Hunter
DATE:6 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 06 June 2024 at 3:39pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – ICT security specialist – combined hearing with visa review – adverse information about nominee accepted as incorrect – contract of employment not provided with application, claimed to have been provided later but no record of this – contract provided with review application – genuine position – nominee’s qualifications, skills and experience, size and scope of business, and tasks and importance of position – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA, 359(2), 359AA
Migration Regulations 1994 (Cth), r 2.72(11)
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 18 September 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(11) because the delegate was not satisfied that the applicant would engage the nominee on a written contract of employment.
Mr Serge Niazi, director, appeared on behalf of the applicant company before the Tribunal on 12 April 2024 to give evidence and present arguments. The hearing was combined with the review application for the visa nominee, Ms Ivana Taleska. Ms Taleska also provided oral evidence to the Tribunal.
The applicant was represented in relation to the review and the representative also attended the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
BACKGROUND
The applicant company is situated in Wollongong and has been operating for over twenty years. Through its business it provides information technology and telecommunication services to a range of small to medium business customers. It is seeking approval to sponsor the nominee in the position of ICT Security Specialist.
CONSIDERATION OF CLAIMS AND EVIDENCE
In addition to the evidence of Mr Niazi and Ms Taleska, and the material on the Department file the Tribunal has received the following additional documents:
i.Written submissions of the applicant company’s representative dated 14 October 2021.
ii.Employment contract between the applicant company and Ms Taleska dated 1 August 2020.
iii.Department notification of the approval of the applicant company as a standard business sponsor dated 26 October 2021.
iv.Written submission of the applicant company’s representative addressing the criteria requested in the Tribunals invitation dated 8 November 2023.
v.An ASIC Current & Historical Company Extract for the applicant company.
vi.Current details for ABN 86 112 595 427.
vii.2022 and 2021 Company Tax Return for the applicant company.
viii.Financial report for the applicant for the year ending 30 June 2022.
ix.Business Activity Statements (BAS) July 2021 - June 2023.
x.Organisational Chart October Quarter 2023.
xi.Position description ICT Security Specialist.
xii.1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.
xiii.Fair Work Ombudsman Award Pay Guide – Professional Employees Aware - 15 September 2023.
xiv.Professional Employees Award 2020.
xv.Job Outlook ICT Security Specialists – Labour Market Insights.
xvi.Online extract - Payscale Salary Survey – Average Security Administrator, IT Salary in Australia in 2023.
xvii.Sample recruitment posted on - Information Security Specialist Job in Redcliffe, Brisbane QLD and Cyber Security Solutions Specialist Job in Perth WA.
xviii.Sample recruitment posted on - ICT Security Specialist - Sydney NSW 2000.
xix.Employment Contract between the applicant company and Ivana Taleska dated 12 October 2023.
xx.Student (TU 572) visa grant notice of Ivana Taleska dated 21 December 2015.
xxi.Temporary Work (Skilled) (Subclass 457) visa grant of Ivana Taleska on 15 November 2018.
xxii.Letter of Acknowledgement of Temporary Skill Shortage (Medium Term) (subclass 482) visa application Received on 24 September 2020 for Ivana Taleska.
xxiii.Bridging Visa Grant Notification Received on 24 September 2020 for Ivana Taleska.
xxiv.Ivana Taleska IELTS Test Report Form, 27 October 2018.
xxv.Republic of Macedonia passport of Ivana Taleska valid to 16 October 2024.
xxvi.PAYG Payment Summary of Ivana Taleska for the period 1/07/2017 to 30/06/2018.
xxvii.SAF Levy Receipt dated 18 September 2020.
xxviii.Accountant’s letter dated 17 April 2024.
xxix.Company Income Tax Return for the year ended 30 June 2023.
xxx.Financial Report for the year ending 30 June 2023.
xxxi.Income Activity Statement July 2023, August 2023, October 2023, November 2023, January 2024 and February 2024.
xxxii.BAS September 2023 and December 2023.
The issue in the present case is whether the applicant company meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant company is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant company 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 company has made the nomination in accordance with the process set out in reg 2.73.
The applicant company is nominating an occupation under s 140GB(1)(b) being an ICT Security Specialist in relation to a proposed applicant for a Subclass 482 visa: reg 2.73(1);
The nomination was made using the approved form and fee and therefore meets regs 2.73(3), (4) and (5);
The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);
The nomination is in the Medium-term stream: reg 2.73(6);
The applicant company has identified the nominee, Ivana Taleska, in the nomination: reg 2.73(8);
The nomination includes the name of the occupation and the corresponding 6 digit code for the position of ICT Security Specialist (ANZSCO 262112), the location in Wollongong at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination (4 years), the annual turnover for the nomination, and any other specified information: reg 2.73(9);
In response to the question on the nomination form regarding whether the applicant company certified that they have not engaged in conduct that contravenes s 245AR(1) of the Act, the response given was ‘Yes’. This is accepted as meeting the requirement that the nomination includes written certification as required by reg 2.73(12);
In response to the question on the nomination form regarding whether the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, the response given was ‘Yes’. This is accepted as meeting the requirement that the nomination includes written certification regarding this matter, noting that the occupation of ICT Security Specialist is not exempt: reg 2.73(13);
An affirmative answer was also given in response to the following questions on the nomination form: whether the tasks of the position include a significant majority of the tasks specified for the occupation in the ANZSCO; whether the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO; and whether the position is in the person’s business. This is accepted as meeting the requirement that the nomination includes written certification of these matters: reg 2.73(14).
For these reasons the requirements of reg 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 company 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 regs 1.13A and 1.13B.
Mr Niazi claimed that he was not aware of any adverse information. The Tribunal has reviewed Immigration electronic case management records in relation to the application and it is noted that the applicant company is flagged as a “client of interest” as the nominee, Ms Taleska was recorded as being nominated for a Café or Restaurant Manager with another sponsor. The Tribunal discussed this information with Mr Niazi and Ms Taleska separately pursuant to the provisions of s 359AA of the Act. Mr Niazi told the Tribunal that he was unaware of such information, he maintained that the position for the Ms Taleska was genuine. In her evidence to the Tribunal, Ms Taleska claimed that she had never worked as a Café or Restaurant Manager and was unaware of any previous nomination application. She maintained strenuously that the information was incorrect and that she had only ever sought to be nominated in her current position. The Tribunal accepts the evidence of Mr Niazi and Ms Taleska. It does not consider the information adverse and is satisfied as set out below that the position for the nominee is genuine.
The Tribunal is not aware of any other adverse information regarding the applicant company or any person associated with the applicant company.
For these reasons the requirements of reg 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 evidence before the Tribunal is that the applicant company was most recently approved as a standard business sponsor on 26 October 2021 with effect until 26 October 2026.
For these reasons the requirements of reg 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 company 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. Mr Niazi also confirmed to the Tribunal that he was not aware of any debt.
For these reasons the requirements of reg 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: reg 2.72(6)(a) and reg 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): reg 2.72(14).
The Department records indicate that the nominee, Ms Taleska, was the hold of a Subclass 457 visa granted on 15 November 2018 and valid to 15 November 2020. Ms Taleska is single and there were no other family members who were granted a Subclass 457 visa on the basis of family membership. It follows that the requirements of reg 2.72(6) are met
The Tribunal is not aware of any request made by the Minister for evidence that the nominee satisfied the language test requirements. In any event provided to the Department with the application was an IELTS test that Ms Taleska underwent on 27 August 2018, this is not more than three years on which the evidence was originally provided to the Department. The test results confirm that Ms Taleska achieved an overall score of 8.0 and in which she achieved above the minimum score of 5.0 for each test component. This appears to satisfy the requirements set out in the relevant legislative instrument IMMI 18/032. In these circumstances, the Tribunal finds that the requirements of reg 2.72(14) do not apply, but would in any event be met if requested.
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 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of ICT Security Specialist (ANZSCO 262112) is specified in the Medium and Long-Term Strategic Skills List in IMMI 19/048. The Tribunal is also satisfied that the occupation applied to the nominee Ms Taleska, and is not subject to any inapplicability condition or caveat. Ms Taleska is the holder of an Advanced Diploma in Network Security and a Diploma and Certificate IV in Information Technology Networking. She has seven years relevant experience. The Tribunal is satisfied that it is applicable to the Ms Taleska, who will actually be employed as an ICT Security Specialist (ANZSCO 262112) by the applicant company
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
According to ANZSCO and ICT Security Specialist establishes, manages and administers an organisation's ICT security policy and procedures to ensure preventive and recovery strategies are in place, and minimise the risk of internal and external security threats.
In submissions to the Department, it was claimed that the applicant company’s clients relied on the expertise of the business to supply security solutions to user terminals throughout their networks. The ability to provide specialist expertise and consultancy in the cyber security space was critical to the role that the applicant company plays for its customers. The applicant company business served the needs of over 200 small businesses and this required that it have an individual in the role of ICT Security Specialist who understood the framework of a thorough and all-encompassing security platform, and who also had the ability to apply these needs to the health industry businesses that the applicant company serves. It was claimed that the medical industry had specific requirements and cybersecurity methods needed to have minimal impact on business continuity. The applicant company provides some clients with 24/7 support, and the IT field was constantly evolving with remote access now a necessity. In the role, the Mr Niazi told the Tribunal that Ms Taleska was required to weigh up security risks with business continuity needs and supply the applicant company’s clients with the most affordable option to make their business, website and intranet most secure. She creates relevant policies for their clients for access such as geo-blocking for Australian only access or document access procedures. Currently, there were greater ongoing cyber-security threats for all of their clients and Mr Niazi told the Tribunal IT security has become more critical over the last few years. Mr Niazi claimed that without the expertise of an ICT Security Specialist the applicant company would be putting its clients at risk, which would create damage for their business. The Tribunal is satisfied that the tasks Ms Taleska undertakes in the position are consistent with the tasks of the role of an ICT Security Specialist.
ANZSCO further records the position as having a Skill Level 1, commensurate with a bachelor degree or higher level qualification. Ms Taleska’s highest qualification is an Advanced Diploma. Mr Niazi told the Tribunal that in terms of her ability to undertake the role he was satisfied that Ms Taleska had the skills and experience in the role that many university graduates did not possess. He claimed that Ms Taleska had the ability to adapt and provide creative solutions for their clients many of which were small businesses and over the years working with the applicant company had demonstrated the ability to upskill and obtain knowledge on IT developments in order to deliver the most up to date solution for their customers. He claimed that generally it was very difficult to recruit IT specialists to work in Wollongong, most with higher level qualification preferring to seek employment in larger cities. In his experience it was difficult to get such graduates to stay with the business.
The employment contract submitted provides for Ms Taleska to be engaged on a full-time basis. The evidence of Ms Taleska and Mr Niazi at hearing confirmed that she was employed full-time. Mr Niazi told the Tribunal that with ongoing cyber-security threats for business the role of an IT Security Specialist and the ability to deliver solutions to their clients was in considerable demand. He appreciated Ms Taleska’s commitment to the applicant company’s business and their clients and she had a future role with the applicant company. The Tribunal has further considered the most recent financial statements for the applicant company. It notes that the business reports sales of $4,178,596, a gross profit of $2,038,813 and a net operating profit after tax of $387,881. The accountants for the applicant company further advise on the information available to them that the applicant company has the financial capacity to continue to provide the nominee with her full-time salary.
Having regard to the submitted evidence the Tribunal is satisfied that Ms Taleska will perform for the applicant company the full time role of and ICT Security Specialist (ANZSCO 262112). The Tribunal is also satisfied that Ms Taleska’s position is consistent with the size and scope of the applicant company’s business, and that she will legitimately be employed to full a position that can not be filled from the domestic labour market. It follows that the Tribunal finds that the nominated occupation of ICT Security Specialist is genuine and will be full-time.

For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
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 19/212. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)).
In this case, the applicant is not an overseas business sponsor, nor is the nominated occupation exempt by way of Ministerial Instrument and the requirements of reg. 2.72(11) must be met. Therefore, the applicant company, or an associated entity must employ Ms Taleska as nominee. She is to be engaged pursuant to a written contract of employment and the applicant is to provide a copy of this document to satisfy relevant requirements.
In the first instance the records on the Department file demonstrate that there was no contract submitted by the applicant company with the nomination application. A request for the contract to be provided was sent to the former representative of the applicant company on 22 October 2022. Although it is claimed that a copy was unloaded to the Departmental systems, there is no record of this occurring and it was the ultimately the basis for the nomination refusal.
With the lodgement of the review application the applicant company submitted a copy of the contract dated 1 August 2020. This was provided together with a submission from the new representative of the applicant company that as this was the only critical issue for the refusal the matter should be remitted. However, on review the Tribunal has the power to approve the nomination not just remit on the basis of satisfaction of one of the nomination approval requirements contained in reg, 2.72 and a thorough assessment of the application as at the date of decision is required.
On 8 November 2023, in response to a request for information pursuant to s 359(2) of the Act, the applicant company provided an updated contract of employment between the applicant company and Ms Taleska dated 12 October 2023. It was confirmed at the hearing that Ms Taleska is still engaged pursuant to this contract. The Tribunal is satisfied that Ms Taleska will be employed on a full time basis pursuant to its terms, including an annual salary of what is now $87,38.96 plus superannuation. This is an increase of the initial proposed salary of $65,000 plus superannuation and is reflective of the Ms Taleska’s ongoing experience, importance in the role and relevant market salary for an individual with her experience and qualifications.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
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. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 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: reg 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: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 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: reg 2.72(15)(d) and reg 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 reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 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: reg 2.72(15)(f) and reg 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: reg 2.72(15)(g).
As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.
On the material submitted the applicant company predominantly employs Australian citizens of permanent residents. Of the 19 employees detailed in the organisational chart submitted 16 are Australian citizens. Once more based on the organisational chart submitted the applicant company employs no other worker in the role of ICT Security Specialist.
At the time of lodgement of the nomination the salary proposed for the nominated position was $65,000. It was claimed that a range of job advertisements of a similar nature were researched together with a review on online remuneration surveys for the position, and industry salary surveys. Copies of relevant information claimed to have been reviewed including sample advertisements, extracts from Payscale Australia, Live Salary and other wage sources.
In further submissions to the Tribunal it was submitted that the annual market salary would have increased to $87,000 and claimed that the closest aware matching the nominated occupation would be the Professional Employees Award 2020, however this applies to graduates who had completed a tertiary professional qualification, which is not the situation for Ms Taleska. Nevertheless the applicant company has referred to this as a benchmark and claimed that the proposed position would be similar to a level 4 position under the Professional Employees Award 2020, a copy of which has been provided. This is because the role is not an entry level one and as demonstrated in the organisational chart, Ms Taleska is the supervisor of 5 employees. The Award rate for a level 4 position is currently $43.58 per hour which would equate to an annual salary of $86,114.08.
The applicant company has further submitted that advertisements for equivalent positions for six months prior to its submissions located in Brisbane, Perth and Sydney and providing a salary range between $75,000 to $100,000. While the higher salary is for a Sydney position, it was claimed that the position with the applicant company being located in Wollongong would be more toward the lower end of the range. In addition a remuneration survey from Payscale which notes that the salary range for an IT Security Administrator is between $50,000 -$124,000 and the average salary is $78,073. The graph provided with the salary survey for an experienced person with 5-9 years of experience would be $80,000. Ms Taleska has been working for the applicant company since 2017 and has over seven years relevant experience. The Tribunal has noted that the survey job of Security Administrator is responsible for managing all IT-related security and safety issues within a company. It is accepted that this is closely aligned with the ANZSCO description of ICT Security Specialist duties. Ms Taleska told the Tribunal that she was satisfied that the current salary she was receiving was commensurate with her skills and the market salary for the position.
Having regard to the evidence provide the Tribunal accepts that the AMSR for the nominated occupation has been determined by the applicant company in accordance with the relevant instrument IMMI 18/0333 and, as such the requirements of reg 2.72(15)(c) are met.
The salary rate for the occupation is not less than the TSMIT amount and for this reason the requirements of reg. 2.72(15)(d) are met.
The employment contract and a selection of payslips for Ms Taleska have been provided to the Tribunal. On the basis of the evidence provided the Tribunal accepts that the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation and further that these annual earnings, excluding any non-monetary benefits will not be less than the TSMIT. For these reasons the requirements of reg 2.72(15)(e) and reg 2.72(15)(f) are met.
There is no information that indicates the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation; and if so, whether it is reasonable to disregard this information. For these reasons the requirements of reg 2.72(15)(g) are met.
Employment conditions
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.
There is no information before the Tribunal that indicates that there is any information known to Immigration that the employment conditions (other than those in relation to earnings) that will apply to the nominee are less favourable than those that apply or would apply to an Australian citizen performing equivalent work at the same location. The Tribunal has reviewed the employment contract reflects terms and conditions that appear consistent with the Fair Work Act 2009 (Cth) and other applicable legislation. This means that the requirements of reg 2.72(18)(a) are met.
There is no evidence before the Tribunal that the applicant has engaged in any discriminatory recruitment practices, which means that the requirements of reg 2.72(18)(b) are also met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.
There is nothing before the Tribunal to suggest that labour market testing would be inconsistent with an international trade obligation specified in IMMI 18/183. There is currently no legislative instrument which prescribes a major disaster exemption or a skill and occupational exemption for the applicant company from the requirements of IMMI 18/183.
According to s 6(1) of IMMI 18/036 the period within which labour market testing is required to be undertaken in relation to the nomination is the period of 4 months ending on the day on which the nomination form in relation to the nomination application is lodged.
The manner of labour market testing is that the nominated position must be advertised is as set out in s 8 of IMMI 18/036. This requires:
·The language used for any advertising is in English;
·The nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which are either on a recruitment website, in print media or on radio with national reach, or if the approved sponsor is an accredited sponsor – on the approved sponsor’s website.
·Specified details of the position must be included in the advertisement;
·The applications of expressions of interest for an advertised position must be accepted or at least 4 weeks from when the advertisement is first published.
The evidence before the Tribunal is that the position was advertised by the applicant in English on several different online recruitment websites, Jobactive, Jora, Seek and Indeed. The advertisements on Jobactive and Jora, which it is accepted were national employment advertisers, were undertaken for more than 4 weeks from 12 July 2020 to 13 August 2020. The advertisements on Seek and Indeed were removed from the site by the platform after a lesser period. Copies of the relevant online advertisements have been submitted. The Tribunal is satisfied that they include the title of ICT Security Specialist and a position description of the tasks of the position, the skills and experience required for the position, the name of the approved sponsor, and the salary for the position in satisfaction of s8(4) of IMMI 18/036.
The applicant company further submitted details of the 20 individuals who applied for the advertised position. It accepts the submission, on reviewing relevant applications, that some applications were incomplete and the remaining candidates did not demonstrate relevant qualifications or experience as was required for the role. The Tribunal accepts on the evidence that it is not demonstrated that there was a suitably qualified and experienced domestic candidate available to fill the nominated position. There is no evidence that any relevant redundancies or retrenchments have been made.
For these reasons, the labour market testing requirements in s 140GBA are met.
Nomination training contribution charge
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 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). 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).
The applicant company is liable to pay this charge and has provided a receipt for payment on 18 September 2020. Consequently the Tribunal is satisfied that the requirements of s 140GB(2)(aa) are met.
Conclusion
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.
Penelope Hunter
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)…

[2024] AATA 2399

6 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction