Quinn Interiors Pty Ltd (Migration)

Quinn Interiors Pty Ltd (Migration) [2022] AATA 1020 (30 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Quinn Interiors Pty Ltd
REPRESENTATIVE:  Ms Leah Perkins
CASE NUMBER:  1837390
HOME AFFAIRS REFERENCE(S):          BCC2018/961553
MEMBER:Vanessa Plain
DATE:30 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 30 March 2022 at 6:00pm
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Work (Skilled) stream – Painting Trades Worker – genuine position – terms and conditions of employment no less favourable – tasks of the position correspond to nominated occupation – business doubled its workforce in three years – exempt from labour market testing requirements – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 140, 245
Migration Regulations 1994, Schedule 2, cl 457.223; 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 December 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 28 February 2018. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.
The delegate refused the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
The applicant applied to the Tribunal for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 8 December 2021, the applicant, represented by its director Mr Jeremy Quinn appeared before the Tribunal via video link, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Pawninder Singh Kalsi (the nominee) in the related matter for the subclass 457 visa (AAT Case file 1900961). The related matters were heard concurrently in a combined hearing.
The applicant and nominee were represented in relation to their review by their Australia Legal Practitioner.
The Tribunal exercised its discretion to hold the hearing by video link. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.
Background
The applicant is a company trading as Quinns Painting. Documentation submitted establishes that it is a painting and decorating business, servicing all Western and Northern suburbs of Melbourne. They offer a variety of services including commercial painting, facilities maintenance, graffiti removal, house painting, industrial painting, road line marking and sandblasting. The business has been operating for four years. Mr Quinn is a director of the business.
On 28 February 2018, the applicant lodged an application for an employer nomination for the position of Painting Trades Worker (ANZSCO 332211) under the Subclass 457 Temporary Work (Skilled) stream.
On 5 August 2021 the Tribunal wrote to the applicant and explained that the Tribunal requires current and updated information addressing the criteria in r 2.72 of the Migration Regulations 1994 and s 140GB of the Act which must be met at the time of the Tribunal’s decision.
The Tribunal notes that the applicant and nominee have both submitted a voluminous amount of documentary evidence in support of their claims which specifically address the criteria in r. 2.72 of the Regulations. While the Tribunal has considered all of the documentary evidence submitted by the applicant and nominee, only that which was considered material to its decision has been expressly referred to herein.
Further, the Tribunal has access to the Department Policy considerations, the Act and the Regulations. The Tribunal has also placed reliance upon generic information concerning publicly-available references such as ANZSCO produced by the ABS, and Internet-available information from websites such as PayScale and the Australian Government Department of Education Skills and Employment, on occupational skill shortages and related-information
Evidence of the Nominee (Mr Pawninder Singh Kalsi)
Mr Kalsi informed the Tribunal that he heard the evidence of Mr Quinn and he agrees with Mr Quinn’s evidence. He said that he has been working as a general painter with the business before becoming a supervising painter. He estimates and orders painting materials, deals with the builders and had targets and budgets to meet. His salary has always been paid by the business and he reports directly to Mr Quinn.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination, a Subclass 457 visa applicant as the person who will work in the occupation. The nomination was made using the approved form and was accompanied by the prescribed fee. The Tribunal notes the inclusion of disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act. The applicant has identified Mr Kalsi in the nomination. The nomination includes the location of Melbourne, Victoria at which the occupation will be carried out and includes the name and 6-digit ANZSCO code of the occupation of Painting Trades Worker (ANZSCO 332211).
For these reasons the requirements of reg 2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Departmental records indicate that the applicant was approved as a standard business sponsor which is effective May 2023, therefore the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor.
For these reasons the requirements of reg 2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The applicant has identified in the nomination Mr Kalsi, the nominee to work in the nominated occupation of Painting Trades Worker (ANZSCO 332211).
For these reasons the requirements of reg 2.72(5) are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a Subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·the Subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: reg 2.72(6)(b);
·the applicant must provide a written undertaking if the existing Subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: reg 2.72(7A); and
·if the Subclass 457 visa holder met cl 457.223(6), he or she must either: continue to meet cl 457.223(6); or be an exempt applicant under cl 457.223(4); or have achieved in a single attempt a test score specified in the relevant instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: reg 2.72(10)(g).
Department records indicate that the nominee is not, and has not been, the holder of a subclass 457 visa at the time of application. Therefore, the Tribunal finds that the requirements of r.2.72(6), (7A) and (10)(g) do not apply in this case.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant has provided the name of the occupation, Painting Trades Worker (ANZSCO 332211) and its corresponding ANZSCO code of 332211 and the location of Melbourne, Victoria, which is where the occupation will be carried out.
For these reasons the requirements of reg 2.72(8A) are met.
Certification relating to conduct under s 245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.
The Tribunal notes the inclusion of disclosure by the applicant to the effect that the applicant has not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act.
Accordingly, the requirements of reg 2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
In consideration of whether any information currently before the Tribunal is ‘adverse’, the Tribunal turns to the definition of ‘adverse information’ and ‘associated with’ as defined in rr.1.13A and 1.13B.
'Adverse information' includes any adverse information relevant to a person's suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (defined in r.2.57(1)), for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory, law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law, having become insolvent or has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading. Regulation 2.57(1) provides that a 'competent authority' means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
The Tribunal has reviewed the departmental and Tribunal files and notes that there is no evidence before the Tribunal at the time of this decision, to suggest that there is adverse information known about the applicant or any person associated with the applicant within the meaning provided in r.1.13A and r.1.13B.
Accordingly, the requirements of reg 2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in legislative instrument ‘IMMI 18/004 Specification of Occupations – Subclass 457 Visa’ and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: reg 2.72(10)(b).
The applicant nominated the nominee in the occupation of ‘Painting Trades Worker’ and its corresponding ANZSCO code 332211 which is set out on the Medium and Long Term Strategic Skill List as set out in the legislative instrument IMMI 18/004.
The applicant’s director has provided evidence about the specific tasks undertaken by the nominee in his capacity as a supervisory painter in the business. The Tribunal is satisfied that the tasks of the position are consistent with the tasks of the occupation of Painting Trades Worker (ANZSCO 332211).
The Tribunal also reviewed and considered documentary evidence including a current employment contract and position description highlighting the tasks of the position fulfilled by the nominee. The aforementioned documentation, in conjunction with the verbal evidence received at the review hearing from the applicant’s director, indicates the tasks and duties performed by the nominee are commensurate with the occupation of Painting Trades Worker (ANZSCO 332211).
The contract of employment officially commences upon the nominee’s visa being approved. It is an open ended contract which pays an annual salary of $63,232.00 plus superannuation. The applicant’s director informed the Tribunal that the nominee is critical to the operations of the business as he works in a supervisory capacity for the company.
Following consideration of the evidence, the Tribunal is satisfied that the nominated occupation is duly listed in instrument IMMI 18/004 and is applicable to the nominee who is employed in the occupation supervisory painter.
The Tribunal finds that the requirements of reg 2.72(10)(aa) are met and the requirements of reg 2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009 (Cth).
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: reg 2.57(3A). ‘Earnings’ is defined in reg 2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: reg 2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: reg 2.72(10AB).
Based on the documentary evidence before it, the Tribunal finds that the nominee’s current annual earnings as recorded in the applicant’s payroll records is $63,232 plus superannuation. The nominee’s most recent employment contract demonstrates that the nominee’s base salary is $63,232 plus superannuation. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the employment contract which indicates that the annual base salary of the nominee will be $63,232. The agreement also sets out the details of the nominee’s superannuation and leave entitlements.
The Tribunal is therefore satisfied that the nominee’s contract of engagement has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and Building and Construction General On-Site Award [MA000020].
The Tribunal has before it market salary information provided by the applicant to the Department from PayScale. At the time of this decision, the Tribunal notes that the salary range as per PayScale ( accessed 30 March 2022), is $41,000 to $81,000 with a medium hourly rate of $28.37. The Tribunal is therefore satisfied on the evidence before it, that the nominated base salary of $63,232 is within the appropriate salary range.
The applicant has declared in the nomination application the terms and conditions of employment of Mr Kalsi will be no less favourable that the terms and conditions that are provided or would be provided to Australian citizens or permanent residents performing equivalent work at the same location. All staff in the same or similar position to Mr Kalsi (‘Site supervisor /painter’) earn an annual salary above the TSMIT. There are three staff (including Mr Kalsi) at his level earning the same salary as Mr Kalsi. It is apparent from the applicant’s organisational chart, that Mr Dylan Harris and Mr Paul Guy are Australian citizens who are also employed by the applicant as ‘Site Supervisors / Painters’ and are both also paid an annual salary of $63,232 per annum.

The Tribunal is therefore satisfied that the nominee’s salary is no less favourable than that which would be provided to the relevant Australian equivalent.
Accordingly, the Tribunal is satisfied that the nominee's terms, conditions and salary will be no less favourable than the terms, conditions and salary that would be provided to an Australian citizen or permanent resident for performing equivalent work at the same location.
Accordingly, the Tribunal finds that the requirements of reg 2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the Legislative Instrument (IMMI 13/028) Specification of Income Threshold and Annual Earnings (currently $53,900).
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: reg 2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: reg 2.57. The meaning of ‘earnings’ is provided in reg 2.57A.
Likewise, the requirement in reg 2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the Legislative Instrument IMMI 13/028 (currently $250,000): reg 2.72(10AB).
The Tribunal is satisfied from the evidence of the applicant and nominee that the nominee’s annual earnings are $63,232 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy reg 2.72(10)(cc).
On the evidence set out above, the Tribunal is satisfied that the nominee’s annual earnings exceed the TSMIT, and that (based on the market salary rate information assessed in the section above) the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident, will be greater than the TSMIT.
Therefore, the Tribunal finds that the requirements of reg 2.72(10)(cc) are met.
Certification under reg 2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: reg 2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 18/004;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument.
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 18/004.
Documentary evidence before the Tribunal indicates that the tasks and duties involved in the nominee’s role include the following:
·Interior Painting
·Exterior Painting
·Large Residences
·New Homes
·Renovations & Extensions
·General Painting
·Decorative
·Wall Papering
·Full Restoration
·Colonial Homes
·Weatherboard Homes
·Spray Painting
·Roof Painting
·Maintenance & Touch Ups
Mr Kalsi gave oral evidence that in addition to the aforementioned duties, he has a supervisory responsibility, he meets with builders and is responsible for meeting targets and budgets. This is consistent with the responsibilities set out in more detail in his employment contract dated 28 February 2018 which includes the following duties:
·     Read blueprints / instructions and examine surfaces to determine the kind and amount of work necessary
·     Make on-site preparations such as building scaffolding, ladders, covering fixtures, placing drop sheets etc
·     Prepare walls and other surfaces for painting by scraping, using sandpaper, removing old paint etc
·     Fill cracks and holes with appropriate material and seal and smooth surfaces (e.g plaster)
·     Mix paint and other materials to prepare the right colour or texture
·     Paint surfaces according to instructions with various tools including brushes, rollers and sprays
·     Apply varnish and other finishes
·     Clean equipment and work sit
·     Take and adhere to all occupational health and safety procedures
In November 2020, the nominee was promoted to the role of ‘Site supervisor / Painter’ and received an increase to his salary. In addition to his previous responsibilities, he now works in a supervisory capacity and is also responsible for supervising a team of painters working with him.
The Tribunal finds that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the relevant ANZSCO code.[1]
[1] ANZSCO – Unit Group 3322 Painting Trades Workers accessed 1 December 2021.
The Tribunal finds that the nominated occupation is a position with a business of the nominator, being Quinns Interiors Pty Ltd.
The nominee has a Certificate III in Painting and Decorating as well as two years of on- the-job training and therefore has the required qualifications and experience for the position as defined by ANZSCO. Mr Kalsi also has a positive skills assessment in his nominated occupation although the Tribunal notes that this is not required for his application based on his Australian qualifications.
Accordingly, based upon the aforementioned matters the Tribunal is satisfied that the requirements of reg 2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The Tribunal notes that the delegate refused the application on the basis that the applicant’s nomination did not satisfy the requirements of r.2.72(10)(f). The delegate was not satisfied that the position associated with the nominated occupation was genuine.
The Tribunal has had the benefit of hearing the evidence of the applicant’s director and the nominee at the hearing as to the business’s organisational structure, operations and precise tasks and responsibilities of the nominated position.
Mr Quinn has provided a detailed letter explaining the genuine need for the nominated position and for the nominee to fill that position. The letter provides, among others, that business’s turnover has increased significantly over the past three years (including during the pandemic) and the company has doubled its workforce in the past three years since lodging the nomination application. The nominee is required in the position as he is an experienced and trusted employee of the business. His reliability and consistently impressive skills have earned him a recent promotion to site supervisor / painter.
The Tribunal has had regard to a number of purchase orders for upcoming works which suggests that there is still a need for more painters. The Tribunal has further had regard to copies of job advertisements placed by the busines, which plainly establish that the business is seeking to recruit more painters.
The applicant provided to the Tribunal a detailed job description regarding the position pertaining to the nominated occupation of painter, which relevantly sets out the depth and breadth of the nominee’s day to day responsibilities.
The Tribunal has also considered the ANZSCO occupational dictionary with regard to the occupation of Painting Trades Worker (ANZSCO 332211) and based upon that consideration and comparison with the applicant’s documentary evidence, the Tribunal is satisfied that the nominated occupation lies falls within the description set out in ANZSCO 332211.
Evidence before the Tribunal shows that the nominee commenced working for the applicant two years ago. Mr Quinn told the Tribunal that the nominee has obtained on the job experience and was highly skilled and an integral employee in the business. The applicant’s director further stated that it was difficult to find skilled painters who were reliable.
Given the evidence before it, the Tribunal is satisfied on balance that the position offered to the nominee is genuine and is what it purports to be. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's experience and qualifications. The Tribunal is satisfied on the evidence before it that there is a business need for the position which supports the genuine need for the position. In reaching this conclusion, the Tribunal has also had regard to the business' website, the applicant’s contemporary financial statements and Business Activity Statements.
Accordingly, based upon the evidence before it, on balance the Tribunal is satisfied that the position associated with the nominated occupation is genuine, and it finds that the requirements of reg 2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument.
The applicant has provided to the Tribunal a copy of the contract of employment and an extension of employment letter addressed to the nominee dated September 2021.
Accordingly, the Tribunal finds that the requirements of reg 2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): regs 2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of regs 2.72(11) and (12) are not applicable.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136. In addition:
- the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
- the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
In this case, the nominated occupation is Painting Trades Worker (ANZSCO 332211). This occupation is classified as Skill Level 1 in ANZSCO. All occupations which are classified in ANZSCO as Skill Level 1 are specified for the purposes of the occupational exemptions in s.140GBC(4)(a) of the Act: IMMI 13/137. In the circumstances, the skill and occupation exemptions to the labour market testing requirements in s.140GBC(2) of the Act are met and the applicant is exempt from having to satisfy the labour market testing requirements in s.140GBA of the Act.
For these reasons, the labour market testing requirements in s.140GBA of the Act are not applicable.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Vanessa Plain
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)     the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)     the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)     the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)     the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)     are provided; or
(ii)     would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)     the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)     if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)    unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)     the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)     the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2022] AATA 1020

30 March 2022

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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Appeal