MARYS GROUP AUSTRALIA PTY LTD (Migration)

MARYS GROUP AUSTRALIA PTY LTD (Migration) [2022] AATA 814 (4 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MARYS GROUP AUSTRALIA PTY LTD
CASE NUMBER:  1835898
HOME AFFAIRS REFERENCE(S):          BCC2018/780219
MEMBER:Vanessa Plain
DATE:4 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 04 April 2022 at 9:28pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – evidence of organisational structure, operations and finances provided – comparison of nominee’s tasks and ANZSCO description – labour market testing – no other suitable candidates found – nominee’s experience in role – combined hearing with review of refusal of nominee’s visa application – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(f), 2.73
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 15 November 2018 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 16 February 2018. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the 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. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.
The delegate refused the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant applied to the Tribunal for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 6 December 2021, the applicant, represented by one of its directors, Mr Kenneth Graham, appeared before the Tribunal via video link, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Holly Louise Stamper (the nominee) in the related matter for the subclass 457 visa (AAT Case file 1900219). The related matters were heard concurrently in a combined hearing.
The applicant and nominee were represented in relation to their review by an Australia Legal Practitioner or migration agent.
The Tribunal exercised its discretion to hold the hearing by video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.
Background
The applicant is a company trading as the Landsdowne Pub. Documentation submitted establishes that the company operates a large pub and motel business situated in Annandale in New South Wales. Mr Graham is one of three directors of the company. ASIC documentation shows that the company was registered on 6 December 2017. Its ABN is 30 132053304
Mr Graham informed the Tribunal that the pub is split over 4 to 5 levels and underwent a refurbishment in June 2021. There are two levels of accommodation in the building. The business revolves around the live music scene which is the main operational revenue stream for the business. The company operates two separate venues and employs over 160 people across both venues.
The nominee has been working in the position of hotel manager since 2017 and reports to Mr Graham and to the operations manager. Critical to the nominee’s role is the rostering of staff and security which is a significant part of the hospitality business. Mr Graham meets with the nominee on a weekly basis.
Financial statements and BAS statements for the 2019 and 2020 financial years demonstrate that the business turned a net profit of approximately $377,000 in 2019 and $384,000 in 2020 respectively.
Mr Graham stated that the company placed advertisements for local employees online and received some replies, but given the nominee’s experience and familiarity with the business, she was most suitable for the position. Mr Graham also gave evidence as to the difficulty of finding and retaining good staff in the hospitality industry.
On 16 February 2018, the applicant lodged an application for an employer nomination for the position of Hotel Manager (ANZSCO 141311) under the Subclass 457 Temporary Work (Skilled) stream.
On 22 July 2021 the Tribunal wrote to the applicant and explained that the Tribunal requires current and updated information addressing the criteria in r 2.72 of the Migration Regulations 1994 and s 140GB of the Act which must be met at the time of the Tribunal’s decision.
The Tribunal notes that the applicant has submitted a voluminous amount of documentary evidence in support of its claims which specifically address the criteria in r. 2.72 of the Regulations. While the Tribunal has considered all of the documentary evidence submitted by the applicant (and the nominee), only that which was considered material to the Tribunal’s decision has been expressly referred to herein.
Further, the Tribunal has access to the Department Policy considerations, the Act and the Regulations. The Tribunal has also placed reliance upon generic information concerning publicly-available references such as ANZSCO produced by the ABS, and Internet-available information from websites such as PayScale and the Australian Government Department of Education Skills and Employment, on occupational skill shortages and related-information.
Evidence of the Nominee (Ms Holly Louise Stamper)
Ms Stamper informed the Tribunal that she has listened to the evidence of Mr Graham and agreed with his characterisation of the business and her role in the business. She said she has been working at the business since 2017 and has been offered a full-time employment contract. She stated further that her employment is ongoing and that the business is unique insofar as the layout of the venue is concerned. It is the nominee’s view that the ANZSCO classification is suited to the venue type, she has read the relevant ANZSCO classification for her occupation and agrees that the description therein accurately reflects the tasks and duties she undertakes at the business premises.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination, a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and was accompanied by the prescribed fee. The Tribunal notes the inclusion of disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act. The applicant has identified Ms Stamper in the nomination. The nomination includes the location of Annandale in New South Wales at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Hotel Manager (ANZSCO 141311).
For these reasons the requirements of reg 2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Departmental records indicate that the applicant was approved as a standard business sponsor on 15 May 2018 and the approval remains effective until 15 May 2023. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor.
For these reasons the requirements of reg 2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The applicant has identified in the nomination Ms Stamper, the nominee to work in the nominated occupation of Hotel Manger (ANZSCO 141311).
For these reasons the requirements of reg 2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 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 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);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: reg 2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: reg 2.72(7A); and
·if the Subclass 457 visa holder met cl 457.223(6), he or she must either: continue to meet cl 457.223(6); or be an exempt applicant under cl 457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: reg 2.72(10)(g).
Department records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa at the time of application. Therefore, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
- the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
- if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
- the location(s) at which the nominated occupation is to be carried out.
The applicant has provided the name of the occupation, Hotel Manager (ANZSCO 141311) and its corresponding ANZSCO code of 141311 and the location of Annandale, New South Wales, which is where the occupation will be carried out.
For these reasons the requirements of reg 2.72(8A) are met.
Certification relating to conduct under s 245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.
The Tribunal notes the inclusion of disclosure by the applicant to the effect that the applicant has not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act.
Accordingly, the requirements of reg 2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
In consideration of whether any information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B.
'Adverse information' includes any adverse information relevant to a person's suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (defined in r.2.57(1)), for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory, law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law, having become insolvent or has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading. Regulation 2.57(1) provides that a 'competent authority' means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
The Tribunal has reviewed the departmental and Tribunal files and notes that there is no evidence before the Tribunal at the time of this decision, to suggest that there is adverse information known about the applicant or any person associated with the applicant within the meaning provided in r.1.13A and r.1.13B.
Accordingly, the requirements of reg 2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in legislative instrument ‘IMMI 18/004 Specification of Occupations – Subclass 457 Visa’ and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: reg 2.72(10)(b).
The applicant nominated the nominee in the occupation of ‘Hotel Manager’ and its corresponding ANZSCO code 141311 which is set out on the Medium and Long Term Strategic Skill List as set out in the legislative instrument IMMI 18/004.
The applicant’s director has provided evidence about the specific tasks undertaken by the nominee in her capacity as an employee hotel manager in the business. The Tribunal has also had regard to a detailed position description which indicates that the nominee’s duties are as follows:
·Organising and supervising day to day operations of the hotel, including reception, reservations and housekeeping matters
·Managing and supervising staff and rostering
·Overseeing accounting and purchasing and financial reporting to directors and operations manager
·Ensuring compliance with work health and safety and fire safety regulations
·Access and review guest preferences and respond to customer enquiries and bookings
The Tribunal is satisfied that the tasks of the position are consistent with the tasks of the occupation of Hotel Manager (ANZSCO 141311).
The Tribunal also reviewed and considered documentary evidence including a current employment contract dated 12 December 2017 and position description highlighting the tasks of the position fulfilled by the nominee. The aforementioned documentation, in conjunction with the verbal evidence received at the hearing from Mr Graham, indicates the tasks and duties performed by the nominee are commensurate with the occupation of Hotel Manger (ANZSCO 141311).
The contract of employment officially commences upon the nominee’s visa being approved, although it has been on foot since 2017. It is an open-ended contract which pays an annual salary of $57,000 plus superannuation. The applicant’s director informed the Tribunal that the nominee is the only hotel manager at the premises and she is critical to the business given the volume of staff that she manages.
Following consideration of the evidence, the Tribunal is satisfied that the nominated occupation is duly listed in instrument IMMI 18/004 and is applicable to the nominee who is employed in the occupation of Hotel Manager.
The Tribunal finds that the requirements of reg 2.72(10)(aa) are met and the requirements of reg 2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009 (Cth).
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). ‘Earnings’ is defined in reg 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: reg 2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: reg 2.72(10AB).
Based on the documentary evidence before it, the Tribunal finds that the nominee’s current annual earnings as recorded in the applicant’s financial records is $57,000 plus superannuation. The nominee’s most recent employment contract also demonstrates that the nominee’s base salary is $57,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.

The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the employment contract dated 12 December 2017 which indicates that the annual base salary of the nominee will be $57,000. The agreement also sets out the details of the nominee’s superannuation and other leave entitlements and duties.
The Tribunal is therefore satisfied that the nominee’s contract of engagement has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Cth).
The Tribunal has before it market salary information provided by the applicant from PayScale. At the time of this decision, the Tribunal notes that the salary range as per PayScale ( accessed 4 April 2022), is $39,000 to $73,000. The Tribunal is therefore satisfied on the evidence before it, that the nominated base salary of $57,000 is within the appropriate salary range.
The applicant has declared in the nomination application the terms and conditions of employment of Ms Stamper will be no less favourable that the terms and conditions that are provided or would be provided to Australian citizens or permanent residents performing equivalent work at the same location. Mr Graham gave evidence that the business employs over 160 people across two venues and that many of these employees are Australian citizens or residents.
As there are no other hotel managers working at the business premises, notwithstanding the applicant’s advertising efforts, the Tribunal is therefore satisfied that the nominee’s salary is no less favourable than that which would be provided to the relevant Australian equivalent.
Accordingly, the Tribunal is satisfied that the nominee's terms, conditions and salary will be no less favourable than the terms, conditions and salary that would be provided to an Australian citizen or permanent resident for performing equivalent work at the same location.
Accordingly, the Tribunal finds that the requirements of reg 2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the Legislative Instrument (IMMI 13/028) Specification of Income Threshold and Annual Earnings (currently $53,900).
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: reg 2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.
Likewise, the requirement in reg 2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the Legislative Instrument IMMI 13/028 (currently $250,000): reg 2.72(10AB).
The Tribunal is satisfied from the evidence of the applicant and nominee that the nominee’s annual earnings are $57,000 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy reg 2.72(10)(cc).
On the evidence set out above, the Tribunal is satisfied that the nominee’s annual earnings exceed the TSMIT, and that (based on the market salary rate information assessed in the section above) the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident, will be greater than the TSMIT.
Therefore, the Tribunal finds that the requirements of reg 2.72(10)(cc) are met.
Certification under reg 2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:
- the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 18/004;
- if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument.
- if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
- the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 18/004.
Documentary evidence before the Tribunal indicates that the tasks and duties involved in the nominee’s role include the following:
·Organising and supervising day to day operations of the hotel, including reception, reservations and housekeeping matters
·Managing and supervising staff and rostering
·Overseeing accounting and purchasing and financial reporting to directors and operations manager
·Ensuring compliance with work health and safety and fire safety regulations
·Access and review guest preferences and respond to customer enquiries and bookings
The nominee gave evidence to the effect that her duties as described in the submitted documentation are an accurate summary of her day to day duties in the business. There is no reason for the Tribunal not to accept the evidence of the nominee.
The Tribunal finds that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the relevant ANZSCO code.
The Tribunal finds that the nominated occupation is a position with the business of the nominator, being Marys’ Group Australia Pty Ltd.
Accordingly, based upon the aforementioned matters the Tribunal is satisfied that the requirements of reg 2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This 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.
The Tribunal notes that the delegate refused the application on the basis that the applicant’s nomination did not satisfy the requirements of r.2.72(10)(f). The delegate was not satisfied that the position associated with the nominated occupation was genuine.
At the time of hearing, the circumstances in the business have vastly changed. There are now over 160 people employed by the business and the 2019 and 2020 financial statements clearly demonstrate that the company is financially successful. On the basis of this evidence, the Tribunal is satisfied that the business has the capacity to pay the wages of the nominee and that there is a genuine need for her full-time employment in the business.
The Tribunal has also had the benefit of hearing the evidence of the applicant’s director and the nominee at the hearing as to the business’s organisational structure, operations and precise tasks and responsibilities of the nominated position.
Mr Graham gave evidence in which he explained the genuine need for the nominated position and for the nominee to fill that position as her experience was vastly superior to other applicants.
The Tribunal has had regard to a number of job advertisements placed by the busines, which plainly establish that the business was seeking to employ hotel or motel managers to work under Mr Graham and the operations manager. Documents submitted establish that 7 responses were received by the business, but those who responded did not have the experience that the nominee had in the industry and on that basis, they were not as suitable for the role.
The applicant also provided to the Tribunal a detailed job description regarding the position pertaining to the nominated occupation of hotel manager, which relevantly sets out the depth and breadth of the nominee’s day to day responsibilities.
The Tribunal has also considered the ANZSCO occupational dictionary with regard to the occupation of Hotel Manager (ANZSCO 141311) and based upon that consideration and comparison with the applicant’s documentary evidence, the Tribunal is satisfied that the nominated occupation lies falls within the description set out in ANZSCO 141311.
Given the evidence before it, the Tribunal is satisfied on balance that the position offered to the nominee is genuine and is what it purports to be. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's experience and qualifications. The Tribunal is satisfied on the evidence before it that there is a business need for the position which supports the genuine need for the position.
Accordingly, based upon the evidence before it, on balance the Tribunal is satisfied that the position associated with the nominated occupation is genuine, and it finds that the requirements of reg 2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The applicant has provided to the Tribunal a copy of the contract of employment dated 12 December 2017.
Accordingly, the Tribunal finds that the requirements of reg 2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of regs 2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor 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 the Minister has determined it would be inconsistent with a specified international trade obligation.
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 IMM 13/136. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; 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 evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The applicant provided evidence that it completed labour market testing as required in IMMI 13/136 when it submitted this application to the Department. The Tribunal has considered all of the information on the Departmental file pertaining to labour market testing, including the length of advertising, copies of the advertisements placed, statements relating to their cost, the results of the advertisements and the applicant’s response. The Tribunal notes the applicant’s contention that none of the 7 candidates who applied for the role during the LMT period possessed the skills and experience to perform the nominated role of Hotel Manager. The Tribunal notes that the applicant completed the labour market testing as required for this application while the nominee was, at that time, holding a Subclass 457 visa.
Based on all the evidence before it, the Tribunal is satisfied that the labour market testing requirements in s 140GBA are met.
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.
Vanessa Plain
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)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.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2022] AATA 814

4 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Appeal