McCawley Construction Pty Ltd (Migration)

McCawley Construction Pty Ltd (Migration) [2024] AATA 340 (4 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  McCawley Construction Pty Ltd
REPRESENTATIVE:  Mr Kevin Ryan (MARN: 1573733)
CASE NUMBER:  1935192
HOME AFFAIRS REFERENCE(S):          BCC2019/5786413
MEMBER:Alan McMurran
DATE:4 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 04 January 2024 at 11:09am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Carpenter – Labour Market Testing (LMT) – Australia’s international trade obligation (ITO) – LIN 18/183 – passport holder of a WTO member country – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 360
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 13 December 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 23 November 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, McCawley Construction Pty Ltd, applied for approval on 15 November 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream.
Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA.
In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream for up to 4 years. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s.140GBA(3) of the Act relating to the requirement for Labour Market Testing (“LMT”), because the LMT relied upon in the application was not undertaken as prescribed by legislative instrument LIN 18/036.
The nominee, Mr James O’Brien, a 27 year-old Irish citizen, had also applied for a related Subclass 482 visa, which application the nominee sought to withdraw when the nomination was refused. Since then, the nominee has applied for a Subclass 186 visa, sponsored by the applicant, for permanent residency. Those details are not before the Tribunal. The nominee remains employed by the applicant in the nominated occupation of Carpenter, ANZSCO 331212.
The applicant has made detailed submissions to the Tribunal and asked that the nomination decision be reviewed on the basis the nominee remains employed, and because no decision has been made on the nominee’s permanent residency visa application. The nominee did not want to have a visa refusal in place for the related Subclass 482 visa pending consideration for his permanent residency visa. The nominee however reserves the opportunity to resubmit a related Subclass 482 visa application, pending the outcome of this review of the nomination refusal.
The applicant was represented in relation to the review by a lawyer.
Decision
Having considered all the available information and documentation as provided and updated for the review, the Tribunal formed the view that it could finalise the nomination review favourably for the applicant and without a hearing, in accordance with s 360(2)(a).
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination.
The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, and the recent submissions from the representative. The information includes material which was not before the Department.
The Tribunal has also had regard to the Act and the Regulations, relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines as well as information generally available from researching the Internet.
The Tribunal sent a s 359 request and invitation to the applicant to provide further information on 20 June 2023. The Tribunal granted an extension for the responses which were received from the representative by 2 September 2023.
A large amount of information has been submitted including in response to Tribunal requests and invitations to respond. The Tribunal has had regard to all of the information, submissions and documentation made available and which is referred to where relevant in these reasons.
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.
On the available information, the Tribunal is satisfied the applicant is nominating an occupation and the corresponding 6 digit code[1] under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Medium-term stream[2]. The nominee is nominated to work in the nominated occupation.
[1] Carpenter (ANZSCO 331212)
[2] LIN19/048 commenced 11 March 2019; for nominated occupations on 11 March 2019, this includes Carpenter (ANZSCO 331212).
The Tribunal is satisfied from the Departmental information that the application was made on the approved form, and the fee paid together with the nomination training contribution charge applicable and collected from the applicant at the time of lodgement, which is in accordance with the current requirements for payment of the fee and as assessed by the Department accordingly.
The nomination includes the proposed period of stay for a visa granted on the basis of the nomination (up to 4 years), and the applicant’s annual turnover as calculated for the financial year 2022 as submitted. FYE 2022 reports turnover of $3,764,904.13.
The Tribunal finds that the application identifies the applicant as a standard business sponsor for the 5-year period from 2 October 2019 until 2 October 2024 and includes the following certifications:
a.the relevant 6-digit occupation code, Accountant (General) (ANZSCO 221111), with the name of the occupation, identifying the nominee in the nomination.
b.the principal location in the registered office at Western Sydney, where the occupation is carried out.
c.the applicant’s turnover, estimated at the time of application at more than $2 million but less than $4 million.
d.the applicant has not engaged in conduct that contravenes s 245AR (1) of the Act relating to paying for visa sponsorship or a sponsorship-related event.
e.the nominee’s employment contract dated 4 November 2019, complies with Commonwealth, State, or Territory employment laws.
f.the nominator’s certification states the tasks of the nominated occupation include a significant majority of the tasks specified for the occupation of , Carpenter (ANZSCO 331212), and the qualifications and experience of the nominee are commensurate with those specified for the occupation in accordance with the relevant instrument. [3]
g.The occupation of Carpenter is not specified in accordance with the relevant instrument [4], which might otherwise exempt it from any additional requirements, and so includes certification that the nominated position is with the applicant’s business located in Australia and not with any overseas employer or an associated entity.
[3] IMMI 19/048
[4] IMMI 18/035
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant 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.
At the time of decision, the Tribunal finds there is no adverse information known to the Department or the Tribunal, about the applicant or a person associated with the applicant.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
Department records have confirmed that the applicant is a standard business sponsor for the period from 18 November 2019 until 18 November 2024.
For these reasons the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO of the Act, and which has not been paid in full.
For these reasons the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
The nominee is not the holder of a Subclass 457 or Subclass 482 visa and there are no current family members of the nominee who hold a Subclass 457 or Subclass 482 visa as a family member of the nominee.
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, IMMI LIN19/048.The occupation must also apply to the nominee in accordance with the instrument.
The applicant has specified the nominated occupation of Carpenter ANZSCO 331212 which corresponds to an occupation in the relevant compilation instrument LIN 19/048.
The occupation is not subject to any inapplicability conditions which might otherwise limit its availability for nomination.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine.
A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where, absent any statutory definition, 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’. This means not only whether the position in question actually exists, but also whether that position really is what it purports to be. The Courts have confirmed that the determination necessarily requires a qualitative analysis of the position, and a comparison of that with the occupation which has been nominated by the proposed sponsor.[5]
[5] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34] (“Cargo”)
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 Tribunal finds that there is no issue nor any evidence before it to the effect that the position in this instance is not full-time, as evidenced by the submitted signed contract of employment[6], which remains current at the time of this review and specifies a 38-hour working week.
[6] Updated as at 18 May 2023
ANZSCO summarises the role as performed by a person who “constructs, erects, installs, renovates and repairs structures and fixtures of wood, plywood, lightweight steel, wallboard and other materials. Registration or licensing may be required.” ANZSCO describes the role generically and provides a guide for alignment of the role against the occupation, where the common tasks include:
- studying drawings and specifications to determine materials required, dimensions and installation procedures
- ordering and selecting timbers and materials, and preparing layouts
- cutting materials, and assembling and nailing cut and shaped parts
- erecting framework, panelised systems and roof framing, laying sub-flooring and floorboards and verifying trueness of structures
- nailing fascia panels, sheathing roofs, and fitting exterior wall cladding and door and window frames
- assembling prepared wood to form structures and fittings ready to install
- cutting wood joints
- may construct concrete formwork
- may repair existing fittings
- may work with plastic laminates, Perspex and metals
The Tribunal has had regard to the evidence submitted with the application and also considered the current employment agreement signed by the parties. The Tribunal has paid particular attention to the description of the role in the business context, the size and scale of the organisation and its activities, and the nominee’s employment background.
The applicant’s website describes the applicant’s business. It was “formed in 2016 as a specialist subcontractor providing formwork, steel fixing and concreting services to the Civil Engineering and Building industry. Whether we operate as the principal contractor or subcontractor, our experienced team acquires a comprehensive understanding of each project to deliver the best possible solution. Our highest priority on all projects is Health and Safety, driven by our Management Plans, Planning and Safety Documents and Onsite Prestart. The integrated Management System we utilise sets us apart from our competitors. All our team whether they are on-site or office based have full access and transparency on every project delivered. We are IOS Australia Accredited and have been awarded Pre-Qualification by Roads and Maritime Services.”
According to the available information, the applicant currently employs 10 full-time staff (including the Managing Director). At the time of application (2019) there were 6 staff, 5 of whom were Australians and/or permanent residents, and 1 foreign student. The financial information produced for the review shows from the FYE 2022 financial statement, a total income of $3,764,904.13. Nett profit (unaudited) is revealed at $85,522.85. Nett assets including plant and equipment are stated at $171,216.95. Accepting the financial information prepared by the applicant’s external accountants, the Tribunal is satisfied that the applicant is trading profitably and has included the nominee’s wages in the total summarised on the balance sheet.
The employment agreement executed on 4 November 2019 simply describes the role as carpenter, principally engaged in formwork construction. There is an attached Duty Statement signed by the parties which describes the role and which “is not intended to be exhaustive”. The work to be performed is described as;
·concrete formwork, build moulds to retain wet concrete
·Study blueprints and building plans to select and order materials and timber, determine dimensions and assess procedures for installation
·Build concrete forms for tunnels, scaffolding, bridges and other construction projects
·Build tunnel bracing in underground passageways• Measure, cut, nail and shape materials such as wood, drywall or fiberglass
·Lay building foundations
·Box up and strip decks, stairs and columns Measure, cut, nail and shape parts
·Install subfloors
·Assemble wood to form structures and fittings for installation
·Site set-up prior to excavation, using string & pegs Construct bulkheads and assemble partitions
·Erect & dismantle formwork to suspended slabs, columns, beams & walls
The available information discloses nothing controversial with the role nominated in the applicant’s business and which generally aligns with the ANZSCO description for work performed by a “Carpenter Formwork” as described in the agreement and further in the job advertisements for the role. The analysis which might support ‘genuineness’ does not involve a review of whether a commercial decision has been properly taken to employ the applicant. But rather it involves consideration in this instance whether the applicant is ultimately doing a majority of those things required for the job role and which do align with tasks as guided by ANZSCO.[7] The applicant has provided a job summary of the nominee’s tasks with his employment agreement in order to outline the job role performed. The Tribunal accepts that summary and description which sits comfortably alongside the scope and scale of the business and in its proper contextual environment.
[7] Department policy considerations - PAM 3 – TSS nominations at 4.5.7
In considering the available information which shows that the nominee has been employed in the role with the applicant under a written contract since 4 November 2019, the Tribunal is satisfied that the position is in fact what it purports to be and that the role nominated is genuinely that of a carpenter.
For these reasons the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 18/035.
In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met. The occupation further is not specified (as exempt) in the relevant instrument.[8]
[8] IMMI18/035
The Tribunal finds on the available information that the applicant has produced a written contract of employment signed by the nominee and the applicant and dated 4 November 2019, and updated 18 May 2023. The signed and updated copy, described as an “addendum” to the 2019 agreement, has been produced for the Tribunal.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the relevant instrument (TSMIT), currently $53,900.00, unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

As the annual earnings in relation to the occupation will not be at least the specified amount ($250,000.00), the requirements of reg 2.72(15) must be met.
AMSR
The annual earnings for the occupation nominated must be determined in accordance with the relevant instrument. This provides at Part 3 the method for determining the annual market salary rate (“AMSR”) where an Australian worker is performing equivalent work. The applicant must have regard to a relevant fair work instrument, State industrial instrument or transitional instrument applicable to an Australian worker employed in the same workplace, at the same location and performing equivalent work. The AMSR also takes into account relevant job outlook information generally available, advertisements for similar positions within the last 6 months in the same location and any remuneration surveys.
The relevant industrial instrument relied upon is the Building and Construction General On-Site Award 2010.The applicant’s advertised salary at the time of application in 2019 was $60,000.00 per annum plus superannuation, for a 38 hour week and at an hourly rate of $36.94. The applicant’s current salary was increased as at 18 May 2023 to $97,760.00 per annum, plus superannuation, for 38 hours representing an hourly rate of $47.00.
The Tribunal finds in this instance on the available information that the average salary range for the occupation varies between $26ph at year 1 upwards to $42ph at years 10-20 [9]. Job websites for the occupation such as Indeed, Skills Australia and Seek show a variable range from $40,000 pa entry level upwards to an average of approximately $75,000.00 pa to $90,000, depending upon years’ experience.
[9] Payscale Australia as at January 2024
The current salary for the nominee is $97,760.00pa. As the applicant’s annual salary for the nominated occupation equals or exceeds the AMSR (averaged at $78,000pa) by reference to advertised similar positions for the role and by reference to the relevant industrial instrument, the Tribunal finds it is satisfied for these reasons that the requirements of reg 2.72(15)(c) are met.
The Tribunal further finds that the rate for the occupation is not less than the TSMIT threshold of $53,900 specified in IMMI 18/033. For this reason the requirements of reg 2.72(15)(d) are met.
For the reasons given above and relying upon the provided industry and occupation evidence for the role of Carpenter, the Tribunal is satisfied that the requirements in the legislative instrument,18/033, as to the method of determination of the annual market salary rate have been followed. For these reasons the requirements of reg 2.72(15)(e) are met.
The Tribunal has found that the nominee’s earnings for the position in relation to the nominated occupation are not less than the TSMIT minimum of $53,900 as specified. For these reasons the requirements of reg 2.72(15)(f) are met
There is no information before the Tribunal to indicate that the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. The evidence submitted shows the nominee is paid a salary at the higher end of the market as at the time of review and concludes for these reasons that 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.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
The Tribunal has examined the nominee’s proffered employment contract and had regard to the evidence about his employment terms and conditions. The Tribunal finds that there is no information that indicates the nominee’s employment conditions (earnings considered separately) will be less favourable than those for the Australian equivalent. The applicant has submitted evidence of a comparable Australian employee[10] working in the same role for the applicant and whose produced employment agreement and salary record mirrors that of the nominee.
[10] Rick Slee, carpenter
The nominee’s employment contract relied upon is a standard agreement which includes statutory requirements required by the Fair Work Act (Cth) and State provisions for holiday pay, and accrued sick leave and compassionate leave and would be expected to be the near equivalent of a ‘standard’ employment agreement for the occupation.
The phrase “discriminatory recruitment practices” is not a defined term. The Tribunal finds there is no evidence before it that the applicant has engaged in any discriminatory recruitment practices, based on the available information and applying the language of the expression in accordance with its ordinary meaning and by reference to the evidence of the contract proffered to the nominee.
For these reasons the requirements of reg 2.72(18)(b) are met
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position:
a.to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or
b.it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
Does the LMT requirement apply in this case?
In this instance, the applicant claims that for the applicant to have to comply with the LMT requirements, it would be “inconsistent” with an international trade obligation as determined in s.140GBA(2) of the Act. As the nominee is a citizen of Ireland, the applicant claims that the LMT provision does not apply at first instance as it would be contrary to an Australian trade obligation (ITO).
Sub-section140GBA(2) provides:
(2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.
The relevant instrument in force at lodgement of the nomination, namely LIN 18/183, includes Australia’s commitments under Free Trade Agreements (FTAs) and World Trade Organization (WTO) and General Agreement on Trade in Services (GATS).
LIN 18/183 currently provides as follows[11]:
[11] At par 6
International trade obligations
For the purposes of paragraph 140GBA(1)(c) of the Act, each obligation of Australia under international law, that relates to international trade, under the following agreements is determined as an international trade obligation of Australia:
a.       Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area;
b.       Australia-Chile Free Trade Agreement;
c.       China-Australia Free Trade Agreement;
d.       Comprehensive and Progressive Agreement for Trans-Pacific Partnership;
e.       General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization;
f.       Japan-Australia Economic Partnership Agreement;
g.       Korea-Australia Free Trade Agreement;
h.       Malaysia-Australia Free Trade Agreement;
i.        Protocol on Trade in Services to the Australia-New Zealand Closer Economic Relations Trade Agreement;
j.        Singapore-Australia Free Trade Agreement;
k.       Thailand-Australia Free Trade Agreement.
For the purposes of this review, the instrument relevantly provides for the General Agreement on Trade in Services at Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization.
The Explanatory Statement[12] relevantly sets out the explanation for LIN18/083 at par 3:
3. The instrument operates to determine international trade obligations of Australia for the purposes of paragraph 140GBA(1)(c) of the Act. Paragraph 140GBA(1)(c) provides, in effect, that the labour market testing condition in section 140GBA does not apply to a nomination by an approved sponsor if it would be inconsistent with any international trade obligation of Australia determined in the instrument to require the sponsor to satisfy conditions relating to labour market testing, as defined in subsection 140GBA(7). Subsection 140GBA(2) allows the Minister to determine, by legislative instrument, an obligation of Australia under international law that relates to international trade. An obligation determined by the Minister by legislative instrument includes obligations that may arise under any agreement between Australia and another country (or other countries).
[12] Explanatory Statement (ES) for LIN 18/183: Determination of International Trade Obligations relating to Labour Market Testing) Instrument 2018
The applicant submits the instrument applies in this case, because it specifies an international trade obligation to which Australia is a party that relates to international trade. The argument continues that compliance with the LMT requirement would be ‘inconsistent’ with Australia’s international trade obligations because “ordinarily a nominee who has been employed for more than two years and is a passport holder of a WTO member country is exempt from LMT”. And further that: “as a treaty has been ratified with all WTO countries then LMT is rendered otiose and the delegate has no statutory power to insist LMT be applied.”
The applicant has submitted that compliance with LMT in this case would be inconsistent for a citizen of a WTO member country who is being nominated by an employer and for whom the nominee has worked in Australia. The applicant submits that “mere mention of the treaty in the legislative instrument imports no limitation on how the domestic legislation[13] is to be applied in the way the policy of the Department says it ought to be and is being applied”..
[13] Referring to the relevant section 140GBA(3) and applying s140GBA(1)(c)
The Tribunal has checked the Department’s website for Subclass 482 nominations and notes that it expressly informs that LMT is “not required where Australia has waived this requirement under its ITOs” and where “the worker you nominate is a citizen or an eligible permanent resident* of a WTO member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two years”.
As the applicant’s nominee had not been working for the applicant for 2 years at the time of application, the applicant argues that a temporal requirement of 2 years as the minimum work requirement in accordance with Department Policy, in order to apply the LMT exemption, is “inconsistent” with the relevant instrument, which has no such temporal limitation[14], and that so long as there is a treaty ratified by the WTO member country then the exemption applies.
[14] See par 72 above
Generally available information from the Internet discloses that Ireland has been a WTO member since 1 January 1995, and is a European Union member State in its own right. Australia also has been a member of the WTO since its inception in 1995. The DFAT website informs that “the WTO) is an international body that determines international trade rules. At the heart of the WTO is a series of multilateral agreements that set legal rules for international trade in goods, services and intellectual property”.
The Tribunal has found no specific authority concerning an Irish citizen as nominee for a Subclass 482 visa where the LMT requirement was found to apply, or not to apply. The Tribunal finds, however, on the available information that it is satisfied that both Ireland and Australia as current WTO members are subject to a current ITO and to which the provisions of the instrument LIN 18/183 apply. This has been explained in the accompanying memorandum and confirmed on the DFAT website explanation for the Subclass 482 visa referenced above.
As such the Tribunal finds that the applicant is not required to comply with the mandated LMT requirement as it would otherwise be inconsistent with the ITO in place between them.[15]
Was the LMT requirement met?
[15] Sub section 140GBA(1)(c)
In the course of this review, the Tribunal considered whether the requirement had been met as this was the reason provided by the delegate for refusing the application.
The applicant had made no submission with the nomination application lodged in 2019 that it was not required to comply with LMT because of Australia’s ITO. This argument was made only to the Tribunal on review.
The applicant instead had submitted that it did comply with the LMT requirement at the time of application and that the delegate’s decision had not placed due regard to the submitted information, was premature, and had not provided the applicant an opportunity to submit all relevant information.
For its part, the delegate correctly informed the applicant that the Department is not required to request information once the application is received, unless it may choose to do so. Although as the applicant submitted, there may be no temporal requirement as to when all information is submitted, the applicant risks a decision at any time after lodgement, based upon what has been submitted and without expectation of any requests from the Department. Department information so informs and warns all applicants accordingly.
For the purposes of the LMT provision, ‘labour market testing’ means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI18/036.
In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI18/036.
The instrument provides that the advertising must be in the English language, in at least 2 advertisements, on a recruitment website with national reach in Australia, or similarly in print media with national reach, or on radio. Where the sponsor is accredited, the advertising may appear on the approved sponsor’s website. The advertising must continue for a period of at least four weeks from first publication and have occurred within four months of the lodgement of the application. The advertisements must include the title description of the position, skills and experience required, name of the sponsor (or the recruitment agency), and the salary for the position where the proposed earnings are lower than $96,400.
In this instance, at the time of advertising, the proposed earnings were lower than $96,400.
The problem for the applicant was that all its supporting information for its advertising was not provided at the time of application, but instead was either only partly submitted (one advertising receipt) sometime after lodgement, or, because the decision intervened, not at all.
The applicant has produced to the Tribunal’s satisfaction with its submission for the review:
·     Two advertisements from Seek and Indeed with national reach websites
·     Placed 18 July 2019, and which ran relevantly for at least 4 weeks in a 4 month period pre-lodgement and one of which ran until 10 November 2019
·     In the English language
·     The advertisements included the title description of the position, Carpenter, skills and experience required, name of the sponsor (the applicant’s name), and the salary for the position ($60,000 - $65.000 / year).
The information also included particulars set out in detail and tabulated all responses, names of applicants, and reasons for refusal.
The Tribunal found on the submitted information that:
·labour market testing was undertaken in the manner set out in the legislative instrument;
·the nominator has provided evidence of the labour market testing
·there was no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position; and
·no information was produced that any Australians or permanent residents were made redundant/retrenched prior to the LMT testing conducted.
For these reasons, the labour market testing requirements in s140GBA, although not applicable for the reasons given above, were nonetheless met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa). The applicant in this instance is liable to pay the charge, the application having been made on 15 November 2019.
The Tribunal is satisfied on the available information that the Department has collected the charge on lodgement of the application, and which has been receipted for the applicant on the date of filing, and which amount includes the SAF levy as calculated for the application in the Medium-term stream ($4,800.00). A copy of the receipted contribution charge from the Department has been produced.
For these reasons the requirements of s 140GB(2)(aa) are met.
Summary
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.
Alan McMurran
Member

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

[2024] AATA 340

4 January 2024

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