Pro-Coatings Pty Ltd (Migration)

[2020] AATA 5415

Pro-Coatings Pty Ltd (Migration) [2020] AATA 5415 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pro-Coatings Pty Ltd

CASE NUMBER:  1729327

HOME AFFAIRS REFERENCE(S):          BCC2017/2254077

MEMBER:Mr S Norman

DATE:21 October 2020

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 21 October 2020 at 2:58pm

CATCHWORDS

MIGRATION – nomination of a position – position of Painting Trades Worker – terms and conditions of employment – genuine position – substantial recent growth of business – tasks of the nominated position – labour market testing undertaken – decision under review set aside           

LEGISLATION

Fair Work Act 2009
Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, rr 1.13, 2.57, 2.72, 2.73

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 Immigration and Border Protection on 3 November 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations). The Department delegate’s decision was not lodged with the Tribunal.

2. The applicant applied for approval on 26 June 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) of the Regulations.

4. The applicant (represented by Mr Robert DI FILIPPO) appeared before the Tribunal on 29 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the associated visa applicant (Mr Sebastian MELEGARI). The applicant was represented in relation to the review by its registered migration agent.

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

6. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

7. On 26 June 2017, the applicant/nominator (Pro-Coatings Pty Ltd), lodged a nomination application; the nominated occupation was for a Painting Trades Work (ANZSCO: 332211); the visa applicant/nominee was Mr Sebastian MELEGARI; the base rate of pay per annum was $54,000 (38 hours per week).

   The nomination must comply with the prescribed process

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

9. Based on the information before the Tribunal, I accept the applicant is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a); that the applicant has identified in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b); that the nomination was made using the approved form and fee: r.2.73(2), (3), (5) & (9); that the applicant has identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5); that the applicant has provided certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act[1]: r.2.73(4B); and that the nomination includes the location/s at which the occupation will be carried out, and the name and 6 digit ANZSCO code as well as the relevant certifications mentioned in r.2.72(10) or r.2.72(11): r.2.73(4)/(4A).

   [1] DIAC – p.92 (‘DIAC’ refers to the merged Department file in the Case File of the Tribunal’s CASEMATE database). 

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

    Nominator is a standard business sponsor or party to a work agreement

11. Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister. The evidence before the Tribunal included:

    Sponsorship Application Transaction Reference Number (TRN)

    EGOF0C55PP

12. The Tribunal accepts the applicant is a standard business sponsor.[2]

    [2] DIAC – p.8;

13. For these reasons the requirements of r.2.72(4) are met.

    Identification of the nominee

14. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

15. The applicant has identified in the nomination the proposed applicant for the visa, who will work in the nominated occupation.

16. For these reasons the requirements of r.2.72(5) are met.

    Requirements for existing Subclass 457 visa holders

17. The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.  

18. With the Department, the applicant lodged the visa applicant’s curriculum vitae,[3] which included reference to a number of years of relevant work experience. More importantly, it was claimed the prospective visa applicant does not already hold a Subclass 457 visa.

    [3] DIAC – from p.32. 

19. As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.

    Information about the nominated occupation

20. Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

    ·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one – Painting and Trades Worker (ANZSCO: 332211)

    ·the location(s) at which the nominated occupation is to be carried out – Wetherill Park NSW

21. For these reasons the requirements of r.2.72(8A) are met.

    Certification relating to conduct under s.245AR(1)

22. Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

23. The applicant has certified in writing they had not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

24. For these reasons the requirements of r.2.72(8B) are met.

    No adverse information known to Immigration

25. Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.

26. There is no adverse information known to Immigration or the Tribunal about the applicant or a person associated with the applicant.

27. For these reasons the requirements of r.2.72(9) are met.

    Specified occupation

28. Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

29. The Tribunal accepts the nominated occupation and its 6-digit code (Painting Trades Worker – ANZSCO: 332211) correspond to an occupation and 6-digit code specified in the relevant instrument (IMMI 17/060). No applicability conditions apply. For these reasons the requirements of r.2.72(10)(aa) are met.

30. There is no requirement the nomination is supported by a specified organisation. For these reasons the requirements of r.2.72(10)(b) are not applicable.

    Terms and conditions of employment

31. Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.

32. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.

33. In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA). That stated (in part):

    2 Methodology
    …..
    (2) If subitem 2(1) does not apply, the terms and conditions of employment that would apply to Australian citizens and Australian permanent residents to perform equivalent work in the same workplace in the same location must be determined with regard to relevant information.

34. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10AB). That relevantly stated:

    3. SPECIFY, for the purposes of subregulation 2.72(10AB) and paragraph 2.79(1A)(b) of the Regulations, annual earnings of AUD 250,000.

35. With the Department (and Tribunal), the applicant lodged an employment contract dated 7 December 2016[4] (and 24 July 2020[5]), indicating inter alia the visa applicant would be engaged for 4 years, on an annual salary of $54,000.

    [4] DIAC – p.26.

    [5] CASE FILE merge – from p.220.

36. With the Department, the applicant also lodged comparative evidence of the Painter Salary in Australia from June 2017 – referring to a average wage of $27.75 per hour; a senior salary of $70,000 per annum, an average salary of $50,000 per annum, and a starting salary of $41,500 per annum;[6] and the average weekly hours were said to be 37 ½ hours per week.  This information appears to be consistent with more recent information considered by the Tribunal.[7]

    [6] DIAC – from p.34; and CASE FILE merge - from p.157 (CASE FILE merged refers to the merged CASE FILE dated 12 August 2020, in the Tribunal CASEMATE database).

    [7] See , accessed 15 October 2020.

37. Based on the evidence before the Tribunal, I accept the terms and conditions offered to the visa applicant are equivalent to those offered to an Australian citizen or permanent resident; and that the visa applicant’s earnings are no less favourable than those for the relevant Australian equivalent.

38. For these reasons the requirements of r.2.72(10)(c) are met.

    Base rate of pay  

39. Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028. That relevantly stated:

    2. SPECIFY, for the purposes of paragraph 2.72(10)(cc) of the Regulations, that the temporary skilled migration income threshold is AUD 53,900

40. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

41. Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028: r.2.72(10AB) – being ‘AUD 250,000’. Based on the evidence, r.2.72(10)(cc) applies in this case.

42. As noted above, the applicant lodged an employment contract dated 7 December 2016[8] (and 24 July 2020[9]), indicating the visa applicant would be engaged for 4 years, on an annual salary of $54,000; and therefore, the annual earnings are equal to or greater than the TSMIT income threshold specified in the instrument for r.2.72(10AB).

    [8] DIAC – p.26.

    [9] CASE FILE merge – from p.220.

43. For these reasons the requirements of r.2.72(10)(cc) are met.

    Certification under r.2.72(10)(e)

44. As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:

    ·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO – Yes

    ·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity – Yes

    ·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO – Yes (including an IELTS test results dated 2019[10])

    [10] CASE FILE merge – p.233.

45. For these reasons the requirements of r.2.72(10)(e) are met.

    Position must be genuine

46. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

47. The Department delegate was not satisfied the applicant met r.2.72(10(f).

48. In support of the nomination, and by letter of 26 June 2017,[11] the applicant explained the company commenced business in 1990; it appeared to have changed name in 2010 and operated until August 2016 (the company was said not to have been deregistered at any time between 2010 and 2017). The company recommenced trading in September 2016 using the existing ACN & ABN. It was said the company employed 4 employees (though at hearing, it was explained the company now employed 8 full time employees and sub-contractors); and it specialises in interior and exterior painting of buildings including remedial works, repairs and refurbishment. It is involved in all domestic, industrial and commercial projects.

    [11] DIAC – from p.36.

49. Next, in the same letter it was said the applicant company was not able to provide financial statements for a full financial year as it only recommenced trading in September 2016. However, various Activity Statements were attached (for the period 1 October 2016 to 31 December 2016). The applicant’s business plan indicated they hoped to achieve an income of $950,000 in the first 12 months of operation, increasing to $1,500,000 by the third year of operation. It was also said that as the company grew it needed to rely on reliable employees. It was said the visa applicant had worked as a painter in Italy since 2012 and was valuable to the business.

50. The delegate was not satisfied the nominated position was a Painting Trades Worker as per the ANZSCO description. That being said, the financial information lodged with the Department included:

    ·     Profit and Loss Statement (July 2016 to June 2017)[12] – net loss $1,022.85

    ·     Activity Statements

    ·     Undated accountant letter – claiming the business had a ‘healthy cash flow’[13]  

    ·     Other evidence of business activity

    ·     Evidence from 2016-2017 that it was difficult to engage suitable persons for positions within the industry

    [12] DIAC – from 50.

    [13] DIAC – p.55; CASE FILE merge - p.177.

51. The delegate also referred to the claimed tasks of the nominated position, including: [14]

    [14] DIAC – p.26.

    ·     erecting scaffolding and ladders

    ·     placing drop sheets to protect adjacent areas from paint splattering

    ·     preparing services by removing old paint and wallpaper

    ·     fixing woodwork

    ·     filling holes and cracks

    ·     smoothing and sealing services

    ·     selecting and preparing paints to required colours by mixing portions of pigment, oil and thinning and drying additives

    ·     applying paints, varnishes and stains to surfaces using brushes, rollers and sprays

    ·     hanging wallpaper, matching patterns and trimming edges

    ·     cleaning equipment and work areas

    ·     possibly repairing windows and replacing glass in wooden and metal frames and laying and

    ·     repairing wall and floor tiles.

52. In their decision, the delegate noted the duties listed appeared to be consistent with the role of a Painting Trades Worker as described in ANZSCO. However, after considering all the evidence, the delegate was not satisfied the nominee would likely to be actually regularly performing the full breadth of duties as defined in ANZSCO of a Painting Trades Worker.

53. The delegate continued that the organisation chart[15] indicated the business then consisted of seven main staff members, including a Director, the Direct Supervisor/manager, the Site Manager, 4 subcontractors and other contractors. However, after considering all the information provided, including the financial information, the delegate was not satisfied the applicant’s business was in a position to support the nominated position, in addition to the other staff already engaged.

    [15] DIAC – p.46; CASE FILE merge – p.231. 

54. The delegate noted that the evidence lodged indicated the applicant had difficulty filling the position of a Painting Trades Worker. However, other than a job advertisement listed on 11 November 2016 in Gumtree,[16] the delegate said no other independently verifiable evidence was lodged to show any attempts to hire employees. Next, the delegate considered the claimed growth in the business,[17] but without independently verifiable information the delegate gave this little weight.

    [16] DIAC – p.25.

    [17] DIAC – p.43 (applicant letter dated 20 October 2020). 

55. After then considering all the evidence, the delegate was not satisfied the nominated position was genuine, and as a consequence the applicant was not found to satisfy r.2.72(10)(f); or r.2.72(10).

56. After the delegate’s decision, and by migration agent email dated 15 November 2017, the following was lodged with the Department (in part):

    The business has a turnover in excess of $840,000.00 per year.

    I am of the view that the Minister’s delegate has not given appropriate weight to job description; nature of the business and the fact that the DIBP has previously approved same. And, then by the Minister’s delegate own words that it is consistent with the position? Including the fact that the business has and will continue to meet its financial obligations.

1. Similar concerns were expressed in the migration agent letter to the Tribunal. It was also said the ‘company continues to operate as a successful painting company’. However, and as noted herein, the Profit and Loss Statement (July 2016 to June 2017) recorded a net loss of $1,022.85 (though this loss was recorded in the period shortly after the company recommenced to trade).

2. By s.359(2) letter of 16 July 2020 (emailed to the authorised recipient), the Tribunal requested the applicant lodge further information in support of the nomination application. With the Tribunal, the applicant lodged:

   ·     Migration agent submissions of 30 July 2020

   ·     Activity Statements – up to 2020 (providing evidence of ie, turnover)

   ·     PAYG income tax

   ·     Photographs

   ·     Evidence of recruitment advertisements

   ·     That the visa applicant had worked full time for the company between March 2016 and August 2016[18]

   ·     Company Tax Return 2018 – taxable net income $58,450[19] - tax payable $16,073[20]

   ·     Company Tax Return 2019 - taxable net income $44,026[21] - tax payable $12,107[22]

   ·     Financial Statements for year ending 30 June 2019[23]

   ·     Net assets 2019 - $79,754 / 2018 - $46,726[24]

   [18] CASE FILE merge – p.175.

   [19] CASE FILE merge – p.208.

   [20] CASE FILE merge - p.213.

   [21] CASE FILE merge – p.242. 

   [22] CASE FILE merge - p.242.

   [23] CASE FILE merge – p.255.

   [24] CASE FILE merge – p.256.

3. At hearing, the Tribunal put information to the applicant pursuant to the manner prescribed in s.359AA. When then subsequently discussed, the applicant advised the company had sought to diversify in around 2016 and had formed two companies; the first company (the nominator) had never been de-registered; in September 2016, the nominator recommenced business; the company continued to grow in spite of the economic impact of the COVID-19 pandemic, and evidence of the nominating company’s financial position and ongoing work contracts, were then to be lodged after the hearing (by 13 October 2020).

4. In post hearing migration agent submissions dated 13 October 2020, the following was lodged:

   ·     Sample work contracts  

   ·     Activity Statements:

   ·     July to September 2019 – total sales $209,504 / total salary wages and other payments $14,542

   ·     October to December 2019 – total sales $234,386 / total salary wages and other payments $23,368 

   ·     January to March 2020 - total sales $186,581 / total salary wages and other payments $13,056 

   ·     April to June 2020 - total sales $124,321 / total salary wages and other payments $11,008 

   ·     Several work quotes from 2020

   ·     Evidence of an award of a substantial contract of work dated 30 July 2020

   ·     Profit and Loss Statement – July 2019 to June 2020 – net profit was $5,152.72 / wages and salaries were $137,352.83

5. After considering the post hearing evidence and submissions, the Tribunal accepts the applicant business is ongoing, and that its financial position continues to be (at least) adequate to meet the wages of the visa applicant/nominee. That being said, up until COVID-19, Painting Trades Workers were regularly included in official and other announcements, as work where there continued to be shortages of workers.[25] There is no evidence that such announcements are expected to be permanently impacted by the effects of COVID-19 on the economy. Accordingly, the Tribunal is satisfied this supports the conclusion the position is genuine.

   [25] See Painting Trades Workers, NSW September 2018, Australian Government, Department of Jobs and Small Business, , accessed 14 October 2020; Australia Skills Shortage List, Workpermit.com, , accessed 14 October 2020; and Skill Shortage in Australia, , accessed 14 October 2020.

6. In the circumstances, and after considering all the evidence, including the evidence of the work (tasks) being undertaken by the visa applicant, the Tribunal accepts that the position associated with the nominated occupation is genuine.

7. For these reasons the requirements of r.2.72(10)(f) are met.

   Employment under contract

8. Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a legislative instrument - IMMI 13/067.  

9. With the Department, the applicant lodged an employment contract dated 7 December 2016[26] (and 24 July 2020[27]), indicating the visa applicant would be engaged for 4 years, on an annual salary of $54,000.

   [26] DIAC – p.26.

   [27] CASE FILE merge – from p.220.

10. For these reasons the requirements of r.2.72(10)(h) are met.

    Work agreements

11. Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.

12. Based on the evidence before the Tribunal, the applicant is not a party to a work agreement.

13. For these reasons the requirements of r.2.72(11) and (12) are not applicable.

    Labour Market Testing

14. Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

15. 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 IMMI 13/136. In addition:

    ·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months – none claimed[28]

    ·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.

    [28] DIAC – p.91.

16. The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events. The above instrument relevantly stated:

    … acting under section 140GBA of the Migration Act 1958 (‘the Act’) hereby determine, for the purposes of subsection 140GBA(4) of the Act, that the period within which labour market testing is required in relation to a nominated occupation is twelve (12) months.

17. At hearing, the Tribunal noted that due to the COVID-19 pandemic, unemployment in Australia had risen substantially. As a consequence, the Tribunal asked for evidence to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.

18. The applicant said that even in 2020, the applicant business had difficulty finding anyone to work and remain in the business, and that evidence of same would be lodged after the hearing (by 13 October 2020).

19. In post hearing migration agent submissions dated 13 October 2020, evidence of more recent hiring by the applicant’s business was lodged. The most recent advertisements were placed in the Sydney Morning Herald in August 2020 (though job advertisements were also placed elsewhere). From this advertising the applicant business engaged two more Painters.

20. As noted above, up until COVID-19, Painting Trades Workers were regularly included in official and other announcements, as work where there continued to be shortages of workers.[29] There is no evidence that such announcements are expected to be permanently impacted by the effects of COVID-19 on the economy. Accordingly, the Tribunal accepts this as evidence which demonstrated that there is not sufficient suitably qualified and experienced Australian citizen or permanent residents to fill the demand for Painting Trades Workers; and that the labour market testing was not successful.

    [29] See Painting Trades Workers, NSW September 2018, Australian Government, Department of Jobs and Small Business, , accessed 14 October 2020; Australia Skills Shortage List, Workpermit.com, , accessed 14 October 2020; and Skill Shortage in Australia, , accessed 14 October 2020.

21. Therefore, the Tribunal accepts that labour market testing applies; that it was undertaken in the specified period; that material evidence of same has been lodged; and there is no suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder that is readily available to fill the nominated position.

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

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

    DECISION

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

    Mr S Norman
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination — Subclass 457…

    (1)This regulation applies to a person who is:

    (a)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (b)a party to a work agreement (other than a Minister);

    who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

    (2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

    (3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that the person is:

    (a)a standard business sponsor; or

    (b)a party to a work agreement (other than a Minister).

    (5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

    (6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

    (a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

    (b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

    (7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (7A)In addition to subregulation (6):

    (a)if:

    (i)      the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)     the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

    (b)if:

    (i)      the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

    (ii)     the person has listed on the nomination a person described in paragraph (6) (a); and

    (iii)    the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

    the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

    (8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

    (b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

    (c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

    (a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

    (b)if:

    (i)      there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)     the person is a standard business sponsor;

    the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

    (c)if:

    (i)      there is no 6-digit ANZSCO code for the nominated occupation; and

    (ii)     the person is a party to a work agreement;

    the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

    (d)the location or locations at which the nominated occupation is to be carried out.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (9)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (10)If the person is a standard business sponsor — the Minister is satisfied that:

    (a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    (aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

    (b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

    (c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

    (cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

    (i)      are provided; or

    (ii)     would be provided;

    to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

    (d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)      the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ASCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (a); and

    (ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iii)    if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

    (iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ASCO; or

    (B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

    (e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

    (i)      the tasks of the position include a significant majority of the tasks of:

    (A)the nominated occupation listed in the ANZSCO; or

    (B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

    (ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

    (A)the nominated occupation is a position in the business of the standard business sponsor; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iii)    if the person lawfully operates a business in Australia:

    (A)the nominated occupation is a position with a business, or an associated entity, of the person; or

    (B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

    (A)for the occupation in the ANZSCO; or

    (B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

    (f)the position associated with the nominated occupation is genuine; and

    (g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

    (i)      the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

    (ii)     if:

    (A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

    (B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

    (iii)    the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

    (iv)    unless subparagraph (ii) applies—the holder:

    (A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

    (B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

    (h)either:

    (i)      the person will:

    (A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

    (B)give a copy of that contract to the Minister; or

    (ii)     the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

    (10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

    (a)the terms and conditions of employment; and

    (b)the base rate of pay, under the terms and conditions of employment;

    that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

    (10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

    (a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

    (b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

    (c)the Minister considers it reasonable to do so.

    (11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

    (a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

    (b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)      the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

    (B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and

    (ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

    (c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

    (i)      the tasks of the position include a significant majority of the tasks of:

    (A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

    (B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and

    (ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

    (12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.