Liby Holdings Pty Ltd (Migration)

Liby Holdings Pty Ltd (Migration) [2022] AATA 1394 (20 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Liby Holdings Pty Ltd
REPRESENTATIVE:  Ms Fang Liu (MARN: 1463212)
CASE NUMBER:  1921403
HOME AFFAIRS REFERENCE(S):          BCC2019/3013240
MEMBER:Deputy President J.L Redfern PSM
DATE:20 May 2022
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 20 May 2022 at 4:56pm
CATCHWORDS:
MIGRATION – temporary skill shortage visa (subclass 482) nomination – approval for nominated position of Poultry Farmer (ANZSCO 121321) – whether nominated position is a genuine position – profitability of business – annual earnings – consideration of Australia’s free trade obligations and labour market testing – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65 and 140GBA
Migration Regulations 1994, regs 1.13A, 1.13B, 2.72 and 2.73, Sch 2 Part 482
SECONDARY MATERIALS
IMMI 13/138
IMMI 18/033
LIN 18/183
LIN 21/075
Revised Explanatory Memorandum, Migration Amendment (Temporary Sponsored Visas) Bill 2013
Policy – Migration Regulations – Divisions (Temporary Skill Shortage visa (subclass 482) – nominations)
Free Trade Agreement Between the Government of Australia and the Government of the People’s Republic of China
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 16 July 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Liby Holdings Pty Limited (Liby Holdings), applied for approval on 13 June 2019. Liby Holdings operates a poultry farm in regional New South Wales.
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 being 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 of the Act. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream. The occupation nominated is Poultry Farmer (ANZSCO 121321).
The delegate decided not to approve the nomination on the basis that Liby Holdings did not satisfy the criteria that the position associated with the nominated occupation of Poultry Farmer was genuine. The delegate was not satisfied that, due to the level of trade of the business, it was able to financially support the position nominated. Relevantly, it was noted that the financial statements for Liby Holdings for the year ended 30 June 2018 indicated that the business had achieved a modest income yet had incurred considerable expenses.
Prior to the hearing, Liby Holdings provided extensive submissions and its updated financial information. Liby Holdings appeared before the Tribunal on 10 February 2022 through its migration agent and one of its directors, Ms Shaojuan Liang. The Tribunal also received oral evidence from Mr Xiaoxin Han, who was nominated to fill the position of Poultry Farmer. Liby Holdings was represented in relation to the review. The hearing was adjourned on 10 February 2022 to allow Liby Holdings to provide further evidence and submissions in support of the application for approval. Liby Holdings provided submissions on 13 March 2022 and the application was listed for a further hearing on 13 April 2022. Ms Liang and Mr Han also gave evidence at this adjourned hearing.
For the following reasons, I have 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 Liby Holdings meets the criteria for approval of the nomination. I must approve the nomination if Liby Holdings is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). Liby Holdings must also have paid any nomination training contribution charge in relation to the nomination for which they are liable and must meet any the labour market testing requirements under s 140GBA of the Act.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that Liby Holdings has made the nomination in accordance with the process set out in reg 2.73.
I have reviewed the nomination application dated 13 June 2019 and I am satisfied that the nomination has been made in accordance with the process set out in reg 2.73.
Liby Holdings is nominating a proposed occupation under s 140GB(1)(b) of the Act in relation to an applicant for a subclass 482 visa (reg 2.73(1)). The nomination was made using the approved form and fee and was accompanied by the nomination training contribution charge (regs 2.73 (3), (4), (5) and (5A)). The occupation nominated is one of the short-term skilled occupations specified in the relevant instrument made under reg 2.72(9) of the Regulations, namely the Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Instrument 2019 (reg 2.73(6)(a)).[1] Liby Holdings identified Mr Xiaoxin Han as the nominee (reg 2.73(8)) and the nomination includes the name of the occupation (Poultry Farmer), the corresponding 6-digit code (121321), the location at which the occupation will be carried out (in Kulnura, post code 2250), the proposed period of stay (up to two years) and the annual turnover for the nomination (AUD 262,920) (reg 2.73(9).[2] The nomination application includes written certifications about s 245AR(1) of the Act (reg 2.73(12)). It also includes written certifications that the employment contract with Mr Han complies or will comply with Commonwealth, State or Territory employment laws (reg 2.73(13)) and that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO code 121321 and that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO code 121321 (reg 2.73(14)).[3]
[1] Refer s 6 at Item 5 being Poultry Farmer ANZSCO code 121321.
[2] Refer pp 2-5 Application for Nomination for a Temporary Skill Shortage Visa dated 13 June 2019.
[3] Ibid p 12.
For these reasons, I am satisfied that 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 Liby Holdings or a person associated with Liby Holdings; 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. The reference to ‘Immigration’ should now be taken to refer to the Department of Home Affairs, which includes the immigration portfolio. It is submitted that there is no evidence of adverse information known to Immigration before the Tribunal. I accept this submission and I am therefore satisfied that 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. By letter dated 11 December 2021 from the Department, Liby Holdings was notified that its sponsorship application as a standard business sponsor was approved effective until 11 December 2026. As such, I am satisfied that 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 Liby Holdings has any outstanding debt under s 140ZO of Act. I am therefore satisfied that 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. As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 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, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument. In this case the occupation nominated is Poultry Farmer, and the ANZSCO code is 121321. This corresponds to the occupation and 6-digit code specified in the relevant instrument. There is a caveat or condition recorded to the effect that the position “predominantly involves responsibility for low skilled tasks”. It is submitted, and I accept, for the reasons set out in more detail below, that the role nominated does not involve such responsibilities. I am therefore satisfied that 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 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.
The delegate found that this requirement was not established because he/she was not satisfied that the financial position of the company could be sustained for an extended period. At that time, the annual turnover recorded for Liby Holdings was $262,920. Liby Holdings has provided updated financial information to the Tribunal about its financial position, which reveals that for the financial years ended 30 June 2019, 30 June 2020 and 30 June 2021, Liby Holdings generated income of $761,367, $556,458 and $603,568 respectively. It made a profit of $243,435 in 2019, a small profit of $1141 in 2021 and a loss of $150,506 in 2020 although it is submitted, and again I accept, that this loss must be considered in context. According to Ms Liang, the loss related to increased expenses incurred as a result of the requirements of its new client, Baiada Poultry, to upgrade its operations. This is substantiated by the profit and loss statement 30 June 2020, which records repairs and maintenance and materials and supplies in the vicinity of $220,000. As such, I accept that this appears to be a one-off expense to facilitate the continued operation and profitability of Liby Holdings.
According to the business activity statements for Liby Holdings for the periods 1 July 2021 to 30 September 2021 and 1 October 2021 to 31 December 2021, Liby Holdings generated sales of approximately $169,000 for each quarter. According to Ms Liang, this income was representative of the income received in each of the quarters, and the income for the financial year ending June 2022 is expected to be in the vicinity of $600,000.
Based on the evidence provided by Liby Holdings, it is apparent that the company has been in business since 2014. It experienced financial difficulties in 2018 because one of its major customers, Red Lea, went into liquidation but since that time it is apparent that the company has continued to trade, has found an alternative client base and has, based on its financial statements, continued to generate profits, albeit modest, while paying salaries and wages of approximately $230,000 to its staff, including Mr Han. Mr Han has worked in the business since 2017 on a full-time basis and there is evidence that his role is ongoing. I am therefore satisfied that the nominated position is genuine and that 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 Liby Holdings will give a copy of the contract, signed by the employer and the nominee, to the Minister, unless the nominated occupation is specified in the relevant instrument.
In this case, Liby Holdings is not an overseas business sponsor and so reg 2.72.(11) applies. I must be satisfied that Mr Han will be employed by Liby Holdings and must be provided with a copy of the written contract signed by Mr Han and Liby Holdings (reg 2.72(11)). Liby Holdings has provided a copy of a written employment agreement between Liby Holdings and Mr Han dated 11 June 2019. It is signed by Mr Han and on behalf of Liby Holdings. The contract provides that Mr Han is to be paid an annual remuneration of $58,000, including any allowances and loadings, for a 40-hour week.
Accordingly, 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 relevant instrument.
The relevant instrument, made by the Minister pursuant to reg 2.72(17), is Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (IMMI 18/033). The amount specified in IMMI 18/033 for the purposes of reg 2.72(15)(b) is AUD 250,000. As Mr Han’s annual earnings are less than AUD 250,000 the provisions in reg 2.72(15) apply.
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 nominee by reference to relevant instrument (reg 2.72(15)(c));
·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 (TSMIT) (reg 2.72(15)(d));
·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 (reg 2.72(15)(e));
·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
·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).
IMMI 18/033 also sets out the method for determining the ‘annual market rate’ salary for the nominated occupation. Section 7 specifies the method for determining the salary where an Australian worker is performing equivalent work in the workplace. In this case, I am satisfied that there is no such worker performing equivalent work at the same workplace as Mr Han. As such, s 8 of IMMI 18/033 is the relevant provision. Section 8 provides that, where s 7 of the instrument does not apply, and there is a fair work instrument, State industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for the nominated occupation will be determined by reference to that instrument. In this case there is a fair work instrument, being the Pastoral Award 2020.
Part 8 of the Pastoral Award sets out the classifications, minimum rates and ordinary hours of work and overtime for poultry workers. It is submitted, and I accept based on the material before me, that Mr Han would be classified at a level 4. As such, the minimum hourly rate payable under the Pastoral Award would be $23.67. Relevantly, the Award provides that overtime worked on Sunday is to be paid at the rate of $47.34 per hour (where the overtime is not for the purpose of feeding and watering stock in which case the rate will be lower) and where there is a delayed meal break, the employee must be paid at the hourly rate of $47.34 rather than the minimum hourly rate of $23.67. When an employee supervises others, there is a weekly allowance of $24.06.
In this case it is submitted, and I accept based on the material before me, that Mr Han works two hours overtime every Sunday and that the work undertaken by him relates to paperwork and planning tasks, specifically planning the work schedule for the following week and completing and verifying weekly production records. This work undertaken is thus not for the purposes of feeding and watering stock and attracts the higher rate of $47.34 per hour. It is also submitted, and I accept based on the material before me, that Mr Han is generally required to work two days during the weekday for at least six hours in the morning for urgent farm maintenance and other required tasks which means that for two days each week he works continuously with a delayed meal break. Work undertaken in a meal break must be paid at double rate, being $47.34 per hour rather than the ordinary hourly rate of $23.67. It is submitted, and I accept based on the material before me, that Mr Han also supervises 2 to 6 other employees on a regular basis.
As such, I am satisfied that under the Pastoral Award the ‘annual market salary rate’ for this occupation would be $55,410.16, based on a weekly rate of $1,065.58, which is calculated by reference to the minimum base salary, overtime and delayed meal break and leading hand allowances that would be payable. Accordingly, I am satisfied that the requirements of reg 2.72(15)(c) are met because the annual market salary rate for the nominated occupation has been determined by the nominee by reference to relevant instrument, being the Pastoral Award 2020.
The TSMIT specified in the instrument IMMI18/033 is $53,900. Given the annual market salary for the nominated occupation of Poultry Farmer exceeds this amount, I am satisfied that the requirements of reg 2.72(15)(d) are met.
Section 17 of the Pastoral Award 2020 provides that an employer and a full-time employee may enter into an agreement in writing for the employee to be paid an annualised wage in satisfaction of the minimum rates, allowance, ordinary workout working hours and overtime penalty rates. In this case, Mr Han has a written contract under which he is entitled to be paid 58,000 per annum. It is submitted that the annualised earnings under the contract are not less than and in fact exceed the minimum requirements under the Pastoral Award and, therefore, meet the requirements of reg 2.72(15)(e). I accept this submission based on the material before me and I am therefore satisfied this requirement is met.
I am also satisfied that Mr Han’s annual earnings, excluding any non-monetary benefits, will not be less than the TSMIT and, as such, I am satisfied that the requirements of reg 2.72(15)(f) are met.
There is no information before me that indicates the annual market salary rate being paid, and to be paid, to Mr Han is inconsistent with Australian labour market conditions relevant to the nominated occupation of Poultry Farmer. Relevantly, the evidence provided indicates Mr Han will be paid at least equivalent to or in excess of current market conditions. Liby Holdings provided evidence that the remuneration for Mr Han was more favourable than salary for the occupation of a Poultry Farmer based on data provided on an Australian job website adzuna.com.au, and Pay-scale research, which recorded the average annual salary for the position of Poultry Farmer as approximately $55,000 (adzuna) to $57,000 (Pay-scale). I accept this evidence. For these reasons I am satisfied 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.
I have reviewed the employment contract for Mr Han. I have also reviewed the available Department file and records. There is no information before me that indicates Mr Han’s employment conditions (other than earnings) will be less favourable than those for an Australian equivalent worker. Accordingly, I am satisfied that the requirements of reg 2.72(18)(a) are met.
Regulation 2.72(18)(b) provides that if Liby Holdings is lawfully operating a business in Australia, it must not have engaged in discriminatory recruitment practices. I am satisfied that Liby Holdings is lawfully operating a business in Australia and there is no evidence before me to indicate that Liby Holdings has engaged in any discriminatory recruitment practices.
I am therefore satisfied that the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
Section 140GBA of the Act 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 of the Act apply or unless such a requirement would be inconsistent with a specified international trade obligation.
The operation and effect of this latter exemption is unclear because the legislative provisions and the relevant legislative instruments are confusing and appear to be inconsistent. It is unnecessary to resolve the inconsistencies in this case because on either of the possible interpretations, I have formed the view that Liby Holdings is not required to satisfy the labour market testing condition. However, it is useful to set out the competing constructions for each of the relevant provisions and how this question is resolved in the present case to provide guidance about the issues that may arise for determination in the future.
Section 140GBA(3) of the Act contains the provisions which establish how the labour market testing condition in respect of a nominated position will be satisfied. Section 140GBA(1) contains the provisions which set out when the labour market testing condition should apply to a nomination. Relevantly, s 140GBA(1)(c) provides that the labour market testing condition will apply 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.
Section 140GBA(2) provides:
For the purposes of paragraph (1)(c), the Minister made by legislative instrument, determine (as in international trade obligation of Australia) an obligation of Australia under international law that relates to trade international trade, including such an obligation that arises under any agreement between Australia and another country, or countries.
The Minister has made several determinations under s 140GBA(2) of the Act and those relevant to this case are Migration (LIN 18/183: Determination of International Trade Obligations Relating to Labour Market Testing) Instrument 2018 (LIN 18/183), which was the instrument in force at the time of the application, and Migration International trade obligations relating to labour market testing) Determination (LIN 21/075) 2021 (LIN 21/075), which is the instrument in force at the time of my decision.
LIN 18/183 and LIN 21/075 are in similar terms, the substantive difference being that the international trade agreements listed have changed over time. Typically, free trade agreements are added rather than removed. There is no judicial determination on the issue about whether the relevant determination is that in force at the time of application or whether the determination in force at the time of decision prevails. If there is a conflict, this question would be a critical issue in determining whether the labour market testing condition applies to the nomination. However, it is of no consequence in this case because both instruments apply to nationals/citizens of China who seek temporary entry into Australia.
However, the better view, consistent with the purpose of the exemption which is to ensure that labour market testing cannot be required where it would be inconsistent with Australia’s constantly evolving international trade obligations, is that the instrument in force at the time of the decision should be the relevant instrument for the purposes of assessing whether the labour market testing condition is required. Accordingly, I have applied LIN 21/075 for the purposes of assessing whether the market labour testing conditions under s 140GBA apply.
Section 5 of LIN 21/075 provides as follows:
For paragraph 140GBA(1)(c) of the Act, each obligation of Australia under international law, relating to international trade, under the following agreements is determined as an international trade obligation of Australia…
Section 5 then goes on to list a number of international trade agreements between Australia and other countries in subparagraphs (a) to (p). The China – Australia Free Trade Agreement (ChAFTA) is listed in s 5(c) of LIN 21/075.[4] Chapter 10 of the ChAFTA contains provisions dealing with the movement of natural persons between the two countries. Article 10.4(3)(b) provides,
…neither Party shall… require labour market testing, economic needs testing or other procedures of similar effect as a condition for temporary entry.
[4] Refer
As such, it is clear from a plain reading of the ChAFTA that any requirement for a national/citizen of China to comply with the labour market testing condition under s 140GBA(3) would be inconsistent with the ChAFTA.
There is an interesting issue that arises about whether it is necessary for a decision-maker to review each of the international trade agreements and obligations listed in LIN 21/075, or indeed any subsequent instrument made by the Minister under s140GBA(2), for the purposes of assessing whether there is an inconsistency such that the labour market condition under s 140 GBA(3) would not apply.
Unfortunately, the provisions of ss 140 GBA(1)(c) and 140 GBA(2) are not entirely clear. The question is whether the combined effect of these subsections mean that the determination made by the Minister under sub-s (2) is similar in nature to a ‘deeming’ provision whereby the Minister specifies in the legislative instrument those agreements and obligations in respect of which it is accepted that there are free-trade limitations on the freedom of movement such that the imposition of labour market testing conditions would be inconsistent with those international trade obligations. The alternative construction of these provisions is that the relevant determination of the Minister only identifies the agreement and obligations that may be inconsistent and the decisionmaker must then consider the detail to determine whether in fact the labour market testing condition would be inconsistent.
The difficulty in the present case is that s 5 of LIN 21/075 simply repeats part of s 140GBA(2) and states that each obligation in agreements listed in the section is determined as an international trade obligation of Australia. This does not assist because it appears that all international trade agreements are listed. It is difficult to understand the substantive purpose and effect of LIN 21/075 in circumstances where it simply lists the various agreements. In other words, it is not clear what work is being done by the instrument if it does not have some type of deeming effect by reason of the termination.
A review of the Department’s procedures advice manual in relation to Temporary Skills Shortage Visa (subclass 482) – Nominations (PAM) provides some guidance on the Department’s interpretation of this obligation. Paragraph 4.6.4 explains that s 140GBA does not apply when it is inconsistent with Australia’s international trade obligations for the sponsor to be required to satisfy the labour market testing condition. Thereafter the guidance enumerates the circumstances when the labour market testing condition (referred to as the LMT) will not apply to a nomination. It is apparent the Department has considered the relevant international trade obligations to assist decision-makers in assessing whether the labour market testing condition applies to a particular nomination. It is therefore apparent that the Department’s interpretation of the relevant provisions is that the relevant determination of the Minister only identifies the agreement and obligations that may be inconsistent and does not otherwise form the basis for a binding determination about whether the labour market condition would be inconsistent for the purposes of s 140 GBA(1)(c) of the Act. Guidance made in Department policy about the interpretation of legislation and legislative instruments are not binding and it falls to the Tribunal to form its own view on these matters.
Section 140GBA was inserted into the Act on 29 June 2013 by the Migration Amendment (Temporary Sponsored Visas) Act 2013 (Cth). The revised explanatory memorandum for the Migration Amendment (Temporary Sponsored Visas) Bill 2013 (Cth) provides as follows:
33. The purpose of this provision is to clarify the approved sponsors who must comply with the labour market testing condition in order for the Minister to approve their nominations under new subsection 140GB(2) of the Migration Act. The approved sponsor must be in a class of sponsors prescribed by the Migration Regulations and must have nominated a proposed occupation in accordance with paragraph 140GB(1)(b) of the Migration Act.
34. Further, it is intended that the requirement that the approved sponsor satisfy the labour market testing condition will apply to the extent that the requirement is consistent with Australia’s international trade obligations.
35. New subsection 140GBA(2) of the Migration Act provides that for the purposes of paragraph 140GBA(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.
36. The purpose of this amendment is to ensure that labour market testing cannot be required of an approved sponsor if to do so would be inconsistent with Australia’s international trade obligations as determined by the Minister by legislative instrument.
[emphasis added]
The explanatory memorandum does not assist, although para 36 may suggest that it was contemplated s 140 GBA(2) would provide a mechanism for the Minister to make a determination about when the labour market testing condition would be inconsistent with a particular specified international trade obligation.
This construction is consistent with the first instrument made by the then Minister on 18 November 2013 which relevantly provided as follows:
I, MICHAELIA CASH, Assistant Minister for Immigration and Border Protection, acting under section 140 GBA of the Migration Act 1958 (the Act) hereby:
DETERMINE for the purposes of subsection 140GBA (2) of the Act the following obligations arising under international trade agreements under which the imposition of labour market testing would be inconsistent with those obligations…
The Assistant Minister then proceeded to identify the particular obligations in some detail in a manner that now has been adopted in the Department’s policy, evidencing an analysis of the obligations to assess which would be inconsistent for the purposes of s 140GBA(1)(c) of the Act.
The difficulty is that the more recent determinations made under sub-s (2), namely LIN 18/183 and LIN 21/075, do not do this.
In this case, it is of no consequence which interpretation is correct because analysis of the ChAFTA reveals that the imposition of the labour market testing for a national or citizen of China for the purposes of s 140GBA would be inconsistent. This issue may take on greater significance if an international obligation which has the impact of restricting labour market testing conditions is not listed in the instrument. This may be because of a delay in updating the instrument. Alternatively, if an agreement is listed in the instrument but does not include labour market testing restrictions that cover the field of occupations or at all.
In the present case, there is no dispute that Mr Han is a national/citizen of China (as evidenced by his passport) and the ChAFTA is relevant for the purposes of assessing any inconsistency. I am therefore satisfied that the labour market testing condition set out in s 140GBA of the Act does not apply to this nomination and there is no need to consider these requirements.
Nomination training contribution charge
Section 140ZM(1) of the Act 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) of the Act 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 Liby Holdings is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
Liby Holdings is liable to pay the charge under reg 5.42 and the amount payable is $2,400 (being the amount prescribed under reg 5 of the Migration (Skilling Australians Fund) Charges Regulations 2018). According to evidence provided by the applicant to the Tribunal, this charge was paid by Liby Holdings. I am satisfied that the requirements of s 140GB(2)(aa) of the Act are met.
Conclusion
For the reasons given above, Liby Holdings 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.
J.L Redfern PSM
Deputy President

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2022] AATA 1394

20 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction