Meath Care Inc (Migration)

[2024] AATA 406

Meath Care Inc (Migration) [2024] AATA 406 (29 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Meath Care Inc

CASE NUMBER:  2102183

HOME AFFAIRS REFERENCE(S):          BCC2020/1449160

MEMBER:Susan Hoffman

DATE:29 February 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 29 February 2024 at 7:07am

CATCHWORDS

MIGRATION – approval of a nomination – Short-term stream – position of Admissions and Liaison Coordinator – annual market salary rate – genuine and full-time position – tasks of the position correspond to nominated occupation – admissions role not part of the position classification – reviewing advertisements for equivalent positions – labour market testing – decision under review set aside      

LEGISLATION

Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.72, 2.73, 5.42

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 28 April 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl 2.72(15) of the Regulations as they were not satisfied that the applicant determined the annual market salary rate (AMSR) for the nominated occupation in accordance with the specified method.

4. The applicant lodged a comprehensive submission in December 2023 of over 140 pages. The Tribunal was satisfied it could make a favourable decision on the papers and therefore did not invite the applicant to attend a hearing.

5. 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

1. 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 nomination must comply with the prescribed process

1. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

2. Having had regard to the material in the departmental file, the Tribunal is satisfied as to the following:

   · The applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa: reg 2.73(1);

   ·     The nomination was made using the approved form and fee as per reg 2.73(3), (4) and (5);

   ·     An applicant is required to pay a nomination training contribution charge at the time the nomination application is lodged with the Department. As the Department has processed the application, the Tribunal is satisfied that the nomination was accompanied by the applicable nomination training contribution charge: reg 2.73(5A);

   ·     The nomination was in the short-term stream. The nominated occupation of Contract Administrator (ANZSCO 511111) was listed in the Short-term Skilled Occupation List in the relevant instrument, LIN 19/048, as per reg 2.73(6);

   ·     The applicant identified the nominee as Ms Collett Musiwa in the nomination application form; reg 2.73(8);

   ·     The nomination included the name of the occupation and the corresponding 6-digit code; the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, and the annual turnover for the nomination as well another specified information, as per 2.73(9);

   ·     The nomination includes written certification to the effect that the applicant had not engaged in conduct that contravenes s 245AR(1) of the Act; reg 2.73(12);

   ·     The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and that the position is in the person’s business.

3. For these reasons the requirements of reg 2.72(3) are met.

No adverse information known to Immigration

1. 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.

2. There was no evidence before the Tribunal of any adverse information known to Immigration about the applicant or a person associated with the applicant.

3. For these reasons the requirements of reg 2.72(4) are met.

Nominator is a standard business sponsor

1. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

2. The delegate recorded in their decision of 5 February 2021 that the applicant was a standard business sponsor.

3. The submission to the Tribunal included a letter from the Department dated 7 November 2023 which advised that applicant that it had been approved as a standard business sponsor until 7 November 2028.

4. For these reasons the requirements of reg 2.72(5) are met.

Payment of debt mentioned in s 140ZO

1. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

2. There is no evidence before the Tribunal that the applicant has an outstanding debt under s 140ZO.

3. For these reasons the requirements of reg 2.72(5A) are met.

Requirements for existing Subclass 457 or Subclass 482 visa holders

1. 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).

2. 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

1. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.

2. The Tribunal finds that the nominated occupation of Contract Administrator (ANZSCO 511111) is listed in the Short-term Skilled Occupation List in the relevant instrument, LIN 19/048. There are no caveats specified in the relevant instrument.

3. For these reasons the requirements of reg 2.72(8) are met.

Position must be genuine and full-time

1. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

2. The applicant submitted a position description for an Admissions and Liaison Coordinator, which is the internal job title used by the applicant for the nominated position.

3. According to the nomination application form, the nominee would be required to work 38 hours a week.

4. A letter dated 11 February 2020 from the applicant sent to the nominee confirmed her appointment and the associated terms and conditions, according to which she was required to work for four days a week (Monday, Tuesday, Thursday and Friday) from 8:00 am to 4:00 pm and from 8:00 am to 4:30 pm on Wednesday. This amounted to 40½ a week excluding lunch breaks.

5. A similar letter, dated 18 April 2022, recorded that the nominee was appointed to the full-time position of Admissions and Liaison Coordinator for the same hours set out in the letter dated 11 February 2020.

1. In light of the foregoing, the Tribunal is satisfied that the position is a full-time position.

2. The broad description of Group 5111 - Contract, Program and Project Administrators, which incorporates Contract Administrator (ANZSCO 511111) says of the group that they “plan and undertake administration of contracts, organisational programs, special projects and support services.”

3. The tasks include the following:

   ·developing, reviewing and negotiating variations to contracts, programs, projects and services

   ·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

   ·managing paperwork associated with contracts, programs, projects and services provided

   ·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

   ·advising senior management on matters requiring attention and implementing their decisions

   ·overseeing work by contractors and reporting on variations to work orders

   ·preparing and reviewing submissions and reports concerning the organisation's activities

   ·collecting and analysing data associated with projects undertaken, and reporting on project outcomes

   ·reviewing and arranging new office accommodation

4. The applicant submitted a table which compared the tasks according to ANZSCO with the tasks required to be undertaken by the Admissions and Liaison Coordinator, replicated here:

   Table A

ANZSCO 51111 - Contract Administrator	Meath Admissions and Liaison Coordinator
Qualification - AQF Associate Degree, Advanced Diploma or Diploma / At least three years of relevant experience may substitute for the formal qualifications listed	Relevant tertiary qualifications (diploma or higher) or substantial relevant experience
developing, reviewing and negotiating variations to contracts, programs, projects and services	Prepare, review and adjust contracts and admission requirements for clients
responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected	Provide advice, guidance and support with queries relating to their application, contract, navigation of the Aged Care system
managing paperwork associated with contracts, programs, projects and services provided	Prepare, review, and adjust contracts and admission requirements for consumers
working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met	Review with CM expected Aged Care funding prior to offering of a bed. Support Centre Manager in providing effective management and support to all staff.
advising senior management on matters requiring attention and implementing their decisions	Make recommendations to Centre Managers (CM) and other senior staff regarding any issues of care which place consumers or staff at risk
overseeing work by contractors and reporting on variations to work orders	Ensuring all members of the team, including therapy and hospitality, are aware of consumers’ admission and their care requirements
preparing and reviewing submissions and reports concerning the organisation's activities	Prepare and report on admissions and occupancy information regularly at Senior Management Meetings.
collecting and analysing data associated with projects undertaken, and reporting on project outcomes	Prepare and report on admissions and occupancy information regularly at Senior Management Meetings.

1. It was submitted that although the job title was Admissions and Liaison Coordinator, the bulk of the duties related to the negotiation and supporting the navigation of the complex aged care contracts drawn up between the aged care facility and the client/prospective resident, including the funding arrangements made with the client.

2. The position description submitted to the Tribunal included the following tasks which pertain directly to contracts.

   ·     Ensure consumers/nominated next of kin applying for admission have completed all relevant paperwork and are aware of the fees and charges applicable to them.

   ·     Understand and explain to consumers and their families the new funding model.

   ·     Provide advice, guidance and support with queries relating to their application, contract, navigation of the Aged Care system.

   ·     Utilise strong financial acumen to interpret complex funding models and explain in plain language to clients and their families.

   ·     Prepare, review, and adjust contracts and admission requirements for consumers.

   ·     Ensure all admission paperwork including contracts is requested and completed.

3. It is apparent from Table A above that there are other related tasks expected of the Admissions and Liaison Coordinator which are not inconsistent with the role of a contracts administrator as per ANZSCO 51111.

4. The Tribunal is satisfied that having an Admissions and Liaison Coordinator is required for a residential aged care facility, which is the type of business operated by Meath Care. The Tribunal is satisfied that the position associated with the nominated occupation is genuine. The Tribunal has already found that the position is full-time.

5. For these reasons the requirements of reg 2.72(10) are met.

Employment under contract

1. 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 LIN 19/212.

2. The nominated occupation is not specified in the relevant instrument.

3. 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)).

4. In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.

5. The Tribunal has already referred to letters dated 11 February 2020 and 18 April 2022 from the applicant which were sent to the nominee to confirm her appointment and the associated terms and conditions. The Tribunal is satisfied that these letters are equivalent to employment contracts even though they are not titled as such. In the December 2023 submission, the letter dated 18 April 2022 was referred to as an employment contract.

6. The letters set out the start date of the appointment, the salary, and that terms and conditions were as per the National Employment Standards and Fair Work Act 2009.

7. The letters included sections on conditions of the offer, probationary/qualifying period, hours of work, sick leave, annual leave, long service leave, method of payment and other topics typically included in an employment contract. The letters were signed by the nominee and a representative of the employer.

8. The Tribunal is satisfied that the nominee is and will be engaged as an employee under a written contract of employment by the applicant and that the applicant will give a copy of the contract, signed by the employee and the nominee, to the Minister.

9. For these reasons the requirements of reg 2.72(11) are met.

Annual earnings

1. 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 LIN 18/033.

2. Regulation 2.57A provides for the meaning of ‘earnings’. The amount of annual earnings specified in IMMI 18/033 is $250,000. As the annual salary for the nominated position is less than $250,000, reg 2.72(15) applies. It requires that:

   ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

   ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 18/033, 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).

3. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

4. The applicant’s submission to the Tribunal dated 1 December 2023, stated the following in relation to determining the AMSR.

   The Admissions Coordinator position within the Aged Care sector is a very unique and rare position within the employment market in Australia. It is specific to the Aged Care industry in the required knowledge and experience, and the role is held by one or two people by each provider (depending on the size of the organisation).

   The role is not part of the position classification within the Aged Care Award, in which the majority of our employees’ terms and conditions are based. Therefore, the market rate salary for the Admissions Coordinator position is not easily determined through employment awards and agreements, or specifically within any salary surveys.

   The best gage [sic] of the market salary for the Admissions Coordinator position is through vacancies advertised on websites such as Seek. As of 30 November 2023, there are a total of 11 vacancies advertised on Seek.com.au for the position of Admissions Coordinator (or similar for search of Aged Care Admissions Coordinator) within the Aged Care Sector. Of the 11 positions, only 6 of them are relate to the Admissions Coordination role, and only 3 are based in Perth.

   3 of the 11 advertised positions has a salary range of over $100,000 and the roles all related to a Nursing or Care Coordination position.

   7 of the 11 advertised positions had starting salary ranges from $70,000, 2 of which included the Admissions Coordinator position based in Perth.

   The Meath Care Admissions Coordinator position was advertised in the range of $75,000-$85,000, which is within the expected range for the position.

   Due to the exceptional performance by Ms Colett Musiwa in her role as Admission Coordinator ensuring an average of 98% occupancy throughout the year, year after year, she has recently been offered a salary increase that reflects an annual salary of $90,831.40.

   Additional documents provided to ascertain market salary rate are enclosed and named as the following:

   7b. Aged Care Admissions Coordinator Jobs in All Australia - SEEK.pdf

   7c. Aged Care Admissions Coordinator Jobs in All Australia – SEEK – over $100k.pdf

   7d. Employment Contract – Collet Musiwa – 18 April 2022.pdf

   7e. Salary Increase Letter – Collet Musiwa – 5 July 2023.pdf

1. As is apparent from their submission, the applicant differentiated between advertised positions with a nursing or care component, and those without. The former commanded a higher salary of over $100,000 whereas the others advertised positions with starting salaries of $70,000.

2. A number of the advertisements submitted by the applicant did not include a salary rage. The following are examples of those that did:

   Vacancies for registered and enrolled nurses in aged care facilities, paying between $38 and $57 an hour.

   An aged care facility was seeking a sales and admissions coordinator in Floreat, WA, offering a salary in the range $80,000 to $90,000.

   A similar position in another Perth aged care facility offered a salary of $90,000 plus bonuses.

   A salary in the range $78,219 to $83,963 for a senior international admissions coordinator for Melbourne Polytechnic.

3. The applicant also submitted a letter dated 5 July 2023, which advised the nominee that her hourly rate was increasing from $39.75 to $43.46. This supports the claim of a salary increase to $90,831.40 a year, referred to above.

4. The Tribunal is satisfied that the applicant has shown how they determined the annual market salary. This was done by reviewing advertisements for equivalent positions. For these reasons the requirements of reg 2.72(15)(c) are met.

5. The Tribunal is satisfied that the annual salary of $90,831 a year (excluding superannuation) is not less than the TSMIT and is in line with the annualised market salary rate (AMSR) excluding any non-monetary benefits. For these reasons the requirements of reg 2.72(15)(d) are met.

6. In light of the foregoing, the Tribunal is satisfied that a salary of $90,831 is consistent with, and not less than, the rate for the occupation. The Tribunal is also satisfied that the position is a full time position. For these reasons, the requirements of reg 2.72(15)(e) are met.

7. As the Tribunal has found that the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT, the Tribunal is satisfied that the requirements of reg 2.72(15)(f) are met.

8. There was no evidence before the Tribunal to indicate that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. For these reasons the requirements of reg 2.72(15(g) are met.

Employment conditions

1. 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.

2. There was no evidence before the Tribunal suggesting that Immigration knows of information indicating that the employment conditions (other than those in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location.

3. For these reasons the requirements of reg 2.72(18)(a) are met.

4. 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.

5. There was no evidence before the Tribunal to suggest that the applicant was doing other than lawfully operating a business in Australia. There was no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices.

6. For these reasons the requirements of reg 2.72(18)(b) are met.

Labour Market Testing

1. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).

2. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument LIN 18/036. In addition:

   ·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;

   ·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);

   ·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and

   ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

3. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036.

4. The required evidence includes details of advertising for the position or for similar positions, and the fees and expenses of that advertising.

5. Other relevant information may be included, such as the sponsor’s participation in, for example, job and career expos; details of other fees and expenses incurred associated with recruitments attempts; recent labour market trend research; and expressions of government support. The nomination is not to be treated less favourably if none of the optional evidence is provided.

6. The Tribunal also considered whether there would be any inconsistency between LMT and international obligations or whether the nominated occupation is covered by either the major disaster exemption or the “skill and occupational” exemptions, as specified in the relevant instrument of the Register of Instruments: Business Visas – s. 140GBA(1)(c), 140GBB and 140GBC. If any of these were identified, then the LMT condition would not apply to the applicant.

7. Based on the evidence before it, the Tribunal is satisfied that there are no such exemptions or inconsistency relevant to this matter, in which case the LMT condition does apply and the applicant must satisfy the LMT requirements referred to above.

8. The legislative instrument sets out the following requirements regarding advertising:

   ·     There must be at least two advertisements commissioned by the sponsor which appear on a recruitment website with national reach in Australia, in print media with national reach in Australia or on radio with national reach in Australia. The advertisements must for the position must include the position title, skills and experience required, the sponsor’s name or that of the agency being used, and the salary for the position, if the earnings were less than $96,400. The advertisements must run for at least four weeks.

   ·     In addition, applications or expressions of interest for the advertised position must be accepted for at least four weeks from when the advertisement was first published in print, radio or via website address.

9. The Tribunal has reviewed information provided by the applicant at the time the application nomination was made, and in their submission made in December 2023. At or around the time the applicant lodged the nomination application, they included the following information:

   ·     Meath Care is it exempt from the LMT condition.

   ·     Three advertisements were placed and posted with seek.com.au, Indeed and job active/jobsearch websites.

   ·     Each advertisement was posted for at least 30 days.

   ·     No suitable candidates were identified from the shortlisting process when considered against the selection criteria.

10. The applicant submitted copies of the advertisements placed with each of the three websites.

11. In the nomination application form, the applicant stated that the advertisement placed with seek.com.au was published on 18 March 2020, in English, and remained there for 30 days and that it attracted 63 applications, none of whom were deemed to be suitable.

12. An advertisement placed on the Indeed website was also published on 18 March 2020. also in English, and left there for 30 days. That attracted 37 responses, none of whom were deemed suitable.

13. An advertisement placed on the jobactive/jobsearch website on 18 March 2020, in English, remained there for 33 days. There were 179 responses to it, none of which were deemed to be suitable.

14. At the time of lodging the nomination application, the applicant also submitted copies of the advertisements, each of which were in English and set out the selection criteria, and details of the cost of advertising with seek.com.au, which was $198.00.

15. Also in their nomination application form, the applicant provided background to as follows. The nominee started with Meath Care on a fixed term contract in August 2019 as Admissions and Liaison Coordinator to cover extended leave of the permanent employee who usually did that job. When the permanent employee returned from leave, she decided to resign, giving three months’ notice.

16. The position could not be offered to the nominee because of her visa restrictions. The position was advertised in October 2019. Two people were appointed, each on a part time basis. The first of the two struggled with their duties and resigned after orientation. The second stayed only three months.

17. It was after that, that Meath Care contacted the nominee and investigated the possibility of sponsoring her for the position.

18. The Tribunal is satisfied that there were no redundancies or retrenchments in relevant occupations affecting Australian residents or permanent residents in the four months before the nomination application was lodged on 28 April 2020.

19. The Tribunal notes that the advertisements placed in March 2020 received 63, 37 and 179 responses. Meath Care’s position was that none of the people who responded were suitable.

20. The applicant placed equivalent advertisements with three websites in October 2023. Each ran for four weeks. In total, there were 89 responses to the advertisements. The applicant submitted a chart which recorded how many of the 89 potential candidates for the position met the selection criteria, recorded in Table B.

Table B

86.   Selection criteria	Seek (62 responses)		Ethical jobs (5 responses)		Workforce Australia (22 responses)
	YES/NO		YES/NO		YES/NO
1. Proven experience in a client focused role within aged care	7	55	1	4	0	22
2. Strong communication skills with the ability to communicate complex information in plain language and build strong professional relationships with clients	14	48	1	4	6	16
3. Demonstrated understanding of Aged Care Funding Model	1	62	0	5	0	22
4. Strong organizational and time management skills	15	52	3	2	8	14
5. Ability to review, understand and interpret contracts and applications	0	62	0	5	0	22
6. Relevant tertiary qualifications (diploma or higher) or substantial relevant experience	17	45	5	0	3	19
7.Current National Police Clearance (no older than 6 months)	50	12	4	1	13	9
8. Own car and ability to drive independently	57	5	4	1	13	9
9. Permanent Work Rights in Australia*	52	10	5	0	N/A	N/A
*Neither Workforce Australia screening nor the respondents identified if they had permanent work rights in Australia

1. Table B demonstrates that despite the number of responses – 89 in total – none of the potential candidates were suitable. In particular, none of them satisfied the selection criterion that required a successful applicant to have the “ability to review, understand and interpret contracts and applications”.

2. The Tribunal accepts the unique and specialised nature of the nominated position, in an aged care facility that requires a particular set of skills and personal attributes. As recorded in the nomination application form, the Admissions and Liaison Coordinator “needs to be able to deal with residents and families at an emotional time when they are making life changing decisions about placing their loved one in care”.

3. The role also requires the ability to negotiate the financial aspects of that decision, liaise and advocate with government departments, and the ability to understand and explain legislative requirements.

4. The applicant submitted that were no redundancies or retrenchments at Meath Care in the previous 12 months before lodging their December 2023 submission.

5. Given the foregoing, the Tribunal is satisfied that the LMT was undertaken in the specified period, as per s 140GBA(3)(a) and (4) and was undertaken in the manner set out under LIN 18/036: s 140GBA(3)(aa) and (5).

6. The Tribunal is satisfied that, in 2019, after the permanent employee resigned after taking extended leave, the applicant appointed two people on a part-time basis to cover the role but neither of those appointments worked out. The applicant then advertised again to find a suitable candidate for the vacancy but was unsuccessful in finding a suitably-qualified and experienced Australian citizen or permanent resident, or eligible temporary visa holder, readily available to fill the nominated position: s 140GBA(3)(d).

7. The Tribunal is satisfied that the application was accompanied by evidence of LMT as required by s 140GBA(3)(b)(i) and (6A).

8. There was no evidence before the Tribunal of any employees who were Australian citizens or permanent residents being made redundant or retrenched, in which case the Tribunal need not consider s 140GBA(4A) any further.

9. For these reasons, the labour market testing requirements in s 140GBA are met.

Nomination training contribution charge

1. 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).

2. The applicant lodged the application on 28 April 2020 and was therefore liable to pay the nomination training contribution charge. This charge is generally paid by applicants at the time their applications are lodged. There was no evidence before the Tribunal that this applicant has not paid the nomination training contribution charge.

3. For these reasons the requirements of s 140GB(2)(aa) are met.

4. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

DECISION

1. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Susan Hoffman
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.

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

2. 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.

3. 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.

1. 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.

1. 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.

2. 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.

3. 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.

4. 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.

1. 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.

2. 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.

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

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. …