OM ROADHOUSE PTY LTD (Migration) - [2023] AATA 4304

OM ROADHOUSE PTY LTD (Migration) [2023] AATA 4304 (20 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Om Roadhouse Pty Ltd
REPRESENTATIVE:  Mr Andrew Wun Nam Au (MARN: 1686684)
CASE NUMBER:  2109617
HOME AFFAIRS REFERENCE(S):          BCC2021/513768
MEMBER:Alison Mercer
DATE:20 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 20 November 2023 at 4:00pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Café or Restaurant Manager – labour market testing (LMT) – LIN 18/036 – Item 8 requirements – ‘accompanied by evidence’ – no response to s.359(2) invitation – genuine position – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 360
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Panchal v Minister for Immigration [2012] FMCA 562
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Om Roadhouse Pty Ltd, applied for approval of its nominated occupation of Café or Restaurant Manager on 8 April 2021. 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s.140GBA as the delegate was not satisfied that the applicant had undertaken labour market testing (LMT) in the way prescribed in the relevant written instrument, LIN 18/036, and was not exempt from having to undertake LMT.
The Tribunal received a review application on 29 July 2021. It was lodged on behalf of the applicant by its director, Ms Parul Mehla, and was accompanied by a copy of the delegate’s decision and an authority by which Ms Mehla appointed a registered migration agent, Mr Andrew Nu Naum Au, as the applicant’s representative and authorised recipient for correspondence.
On 3 October 2023, the Tribunal wrote to Ms Mehla via the agent to invite her, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the applicable criteria for approval of its nomination (not just the criterion that the delegate found was not met). Ms Mehla was requested to provide this information to the Tribunal by 17 October 2023. The Tribunal advised her that if she did not provide the requested information (or request an extension of time to do so) by the due date, then the applicant would lose its entitlement to have someone appear on its behalf at a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence, without requesting further information.
On 30 October 2023, the Tribunal wrote to Ms Mehla via the agent to advise that the applicant had lost its entitlement to a Tribunal hearing due to the failure to respond (or seek an extension of time to do so) to the Tribunal’s s.359(2) letter by 17 October 2023. The Tribunal indicated that it would now proceed to make its decision but invited them to provide any additional material they wished to have considered by 13 November 2023.
No further material was received by 13 November 2023, and no further communication has been received to date.
Neither Ms Mehla nor the agent provided the requested information, or requested an extension of time to do so, by 17 October 2023.
The Tribunal is satisfied that its letter of 3 October 2023 was sent to the email address most recently nominated for correspondence by Ms Mehla on behalf of the applicant, and there is no evidence in the Tribunal’s electronic records that the email was undeliverable or not delivered.
The Tribunal notes that it has no power to extend the period to respond to an invitation when a request for an extension is received after the initial prescribed period has passed: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [48]. As above, an extension request was not received, nor was the requested information received in the prescribed period. On behalf of the applicant, Ms Mehla did not provide the information requested in the Tribunal’s letter in the prescribed period. Accordingly, the applicant has lost its entitlement to have an authorised officer represent it at a hearing: s.360(3).
The Tribunal has considered whether to make a further request for information from the applicant, but – in view of the lack of response by the due date and the further lack of response to the letter advising of the loss of the applicant’s hearing right – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers that it is reasonable to do so in the circumstances of the case, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF LAW, 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.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal has reviewed the material provided to the Department in April 2021, which indicates that the applicant trades as a restaurant attached to a service station in Jurien Bay in regional Western Australia.
However, no evidence has been provided to the Tribunal about the current scope of the applicant’s business activities, particularly since the lengthy lockdowns associated with the global COVID-19 pandemic between 2020 and 2022, which adversely affected many businesses, including in regional Australia.
Given the lack of current information, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine or whether a Café or Restaurant Manager is genuinely needed within the applicant’s business.
Accordingly, the Tribunal is not satisfied that r.2.72(10)(a) is met, and therefore finds that r.2.72(10) is not met as a whole.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument IMMI 18/036, item 6 of which provides that the period is the 4 months immediately before the nomination application is made.
In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument IMMI 18/036.
The Tribunal has reviewed the categories of exemption from having to undertaken LMT, and is satisfied that none of then apply to the applicant in this case, as the Tribunal is satisfied that it would not be inconsistent with an international trade obligation and is not subject to the major disaster exemption or the skill or occupation exemptions. Accordingly, the applicant must meet the applicable LMT requirements.
The delegate found that the applicant did not satisfy the LMT requirements for the following reasons:
…
I have assessed the advertisement/s for the position provided by the applicant and I note that as evidence of Labour Market Testing (LMT) the applicant has provided the following documents titled:
● Indeed - Job Ad Evidence.pdf
● JobActive - Job Ad Evidence.pdf
● Seek - Job Ad Evicence (with advertisement content).pdf
Whilst I note that the applicant has provided evidence to indicate that labour market testing was conducted, the screenshots of the advertisement evidence provided does not highlight that the labour market testing was conducted in the manner or for the required duration as specified by the relevant legislative instrument; LIN 18/036.
The documents titled ‘JobActive – Job Ad Evidence.pdf’, and ‘Indeed – Job Ad Evidence.pdf’ do not indicate the details for the salary for the position. As the nominated salary for this position is not $96,400 or above, the applicant is required to include the salary on the advertisement.
Additionally these documents do not include the length of time the advertisement was posted for, position description, and skills and experience required for the position, which are all requirements as stipulated in the legislative instrument. Whilst I acknowledge the information on the nomination application form indicates that the Indeed advertisement was advertised for at least 28 days, the evidence provided does not support these claims.
The Seek advertisement provided does include these details, however the legislative instrument indicates that applicants are required to provide at least three advertisements in the required manner and duration, including one JobActive advertisement. As the applicant has not provided at least two pieces of evidence, I am not satisfied that the applicant has undertaken labour market testing in the required manner.
Whilst the applicant has provided one piece of labour market testing, I am not satisfied that labour market, testing has been conducted in the required manner as per the relevant legislative instrument.
Having considered all of the evidence provided I am not satisfied that the labour market testing was undertaken in the required manner. Therefore, subparagraph 140GBA(3)(aa) has not been satisfied.
Consequently, the applicant does not satisfy the labour market testing condition and section 140GBA of the Migration Act is not satisfied.
…
From its review of the Department file, the Tribunal is satisfied that:
·the applicant advised in the nomination application that there were no redundancies in the 4 month period prior to lodgement of the nomination application;
·the salary for the nominated position was $55,000 per year;
·the applicant indicated in its online application that it undertook LMT, commencing on 6 November 2020 and lasting for ’28 days to 3 months;’
·the applicant further indicated it advertised the job on Seek.com for 4 weeks from 19 November 2020, and that the advertisement included the salary of $55,000 and details of the position and was in English, but no one applied;
·the applicant indicated it advertised the job on Indeed.com for 4 weeks from 26 November 2020, and that the advertisement included the salary of $55,000 and details of the position and was in English, but no one applied;
·the applicant indicated it advertised the job on the Job Active website for 4 weeks from 6 November 2020, and that the advertisement included the salary of $55,000 and details of the position and was in English, but no one applied;
·the applicant indicated that it had uploaded copies of each of the above advertisements with the online application;
·a screen shot from the Job Active website uploaded with the nomination application indicates that the advertisement ran until 9 December 2020 but the text of the advertisement was not provided;
·a screen shot from the Indeed.com website uploaded with the nomination application indicates that the advertisement did not cost anything to lodge, but the text of the advertisement or the length of time it was displayed were not provided; and
·a screen shot from the Seek.com website uploaded with the nomination application provides the text of the advertisement lodged on 19 November 2020, which includes details of the employer, the position, the skills required but does not include the salary. Nor does it indicate for how long this advertisement was visible on the Seek.com website.
Item 8 of IMMI 18/036 requires that the following are met:
·any advertisement must be in English;
·there must be at least 2 advertisements on a recruitment website, radio or in print media, where that medium has national reach;
·the advertisement(s) must contain details of the job and its title, the employer (or recruitment agency if the employer is using one), the salary level if the salary is under $96,400 and the skills required;
·any advertisement must run for at least 4 weeks; and
·evidence of the above must be provided with the nomination application.
The Tribunal is satisfied that the applicant referred in its nomination application to the fact that it had lodged 3 separate advertisements for the nominated position (on the Indeed, Seek and Jobactive websites) for at least 28 days on each occasion in the 4 months prior to the date of the nomination application. However, the Tribunal finds that the applicant did not provide copies of the Seek or Job Active advertisements with the nomination application (or afterwards).
The Tribunal notes that the case of Panchal v Minister for Immigration [2012] FMCA 562, in which Scarlett FM considered the phrase ‘accompanied by evidence’ in relation to cl.485.216 (identically worded to the phrase in s.140GBA(3)(b)(i)), and concluded that the phrase ‘… clearly refers to something other than that which is contained in the online application form’ (at [84]).
It also has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered an identically worded clause (cl.487.216) and held that:
It seems to me that the intention of the regulations is to ensure that the application is
not processed unless it meets certain criteria. That is why relevant evidence is to
accompany the application. Consistent with that purpose the evidence should be
submitted with or at the same time as the application. Yet, it is not necessarily
inconsistent with that purpose that the evidence is submitted after the visa application
is lodged, although how long after is another question… For the above reasons, I am
prepared to accept that evidence accompanying an application could be supplied
after the application is lodged. Evidence supplied around the time of the application
may be sufficient. I doubt, for example, if accompanying evidence appeared in an
annexure which through inadvertence had not been uploaded or attached to the
application but which was forwarded a day or so later, that anyone would argue that
the evidence did not accompany the application. It might even extend beyond that.
Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps…
The Tribunal accepts that the applicant had in fact undertaken LMT in May 2020, prior to lodging the nomination application. Unfortunately, evidence of this was not provided to the Department at any stage. While the applicant has provided it to the Tribunal, the Tribunal finds that it did not accompany the nomination application, even taking into account the case law in Anand and Nguyen discussed above, and thus the Tribunal must find that the applicant does not satisfy s.140GBA(3)(b)(i) and therefore does not meet s.140GBA(3) as a whole.
The Tribunal notes that it has no discretion to overlook or waive the LMT requirements set out in s.140GBA and LIN 18/036.
For the above reasons, the labour market testing requirements in s 140GBA are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved, as the Tribunal has found that the applicant does not meet r.2.72(10) and s.140GBA.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alison Mercer
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)…