Roofs Above & Beyond Group Pty Ltd (Migration)

[2021] AATA 4904

Roofs Above & Beyond Group Pty Ltd (Migration) [2021] AATA 4904 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Roofs Above & Beyond Group Pty Ltd

CASE NUMBER:  1830275

HOME AFFAIRS REFERENCE(S):          BCC2017/3272400

MEMBER:Namoi Dougall

DATE:7 December 2021

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 07 December 2021 at 4:27pm

CATCHWORDS

MIGRATION – approval of a nomination – occupation of Roof Tiler – labour market testing – evidence of job advertisements and selection process – genuine position – actively and lawfully operating a business in Australia – terms and conditions of employment no less favourable – Summary of domestic recruitment efforts – advertising in the 12-month period prior to application – decision under review set aside

LEGISLATION

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

CASES

Anand v MIAC [2013] FCA 1050
Bhatt v MIAC [2012] FMCA 317
Cargo First Pty Ltd v MIBP [2016] FCA 30
DZAAS v MIAC [2012] FCA 28
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
NAHI v MIMIA [2004] FCAFC 10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 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).

2. The applicant applied for approval on 8 September 2017. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s 140GBA of the Act because the applicant was not exempt from, and did not satisfy, labour market testing requirements. The relevant legislative instrument IMMI 13/36 specifies that the period within which labour market testing is required in relation to a nominated occupation is 12 months. As the business nomination was lodged on 8 September 2017, therefore, labour market testing in the circumstances of this review was required to have been carried out from 8 September 2016. The labour market testing information provided with the business nomination application is all dated prior to 8 September 2016.

4. Mr Matthew Garratt, a director of the applicant, appeared on behalf of the applicant before the Tribunal on 9 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Joshua Kama.

   BACKGROUND

5. The business nomination application indicated that the nominee will be employed by the applicant on a salary of $55,000 plus the superannuation guarantee at the location of Kenthurst, Sydney.

6. At the hearing Mr Garratt stated that he established the company 20 years ago. Currently he employs 7 people including casuals and office staff and some people have left since the business lodged the business nomination application. The Tribunal referred to the 2 organisational charts, one provided to the Department and the other provided to the Tribunal. In relation to Mr Guillaumier, Mr Garratt confirmed he was performing the same role as the nominee does now. He was trained up through the business and took over from Mr Rogers, a leading hand when Mr Rogers left the business. Mr Fox, a Subclass 457 visa holder, was a roof tiler. Mr Guillaumier and Mr Rogers were in supervisory roles. The Tribunal asked if any of the employees had other skills and Mr Garratt stated that Mr Guillaumier was also a carpenter.

7. At the time of the business nomination, the business did not employ metal roofers. Currently the business has employees who have the skills of metal roofers/roof plumbers, but they are not qualified or registered. The Tribunal asked whether that is a different role and Mr Garratt stated it is a different skill set but comes under what the business does as they provide anything to do with the outside edge of the roof.

8. The applicant was represented in relation to the review by its registered migration agent.

9. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved 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.

The nomination must comply with the prescribed process

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

2. 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 the fee has been paid. The applicant has identified Mr Joshua Kama in the nomination. The nomination includes the location of various locations in Sydney, NSW, at which the occupation will be carried out and includes the name and 6‑digit ANZSCO code of the occupation of Roof Tiler (333311). For these reasons, the requirements of reg 2.72(3) are met.

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

1. 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.

2. Departmental records indicate that the applicant was approved as a standard business sponsor on 22 May 2018 and that the agreement is still valid. The Tribunal is, therefore, satisfied that the applicant is a standard business sponsor.

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

Identification of the nominee

1. 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.

2. The applicant has identified in the nomination Mr Kama, the nominee, to work in the nominated occupation of Roof Tiler (333311). For these reasons, the requirements of reg 2.72(5) are met.

Requirements for existing Subclass 457 visa holders

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

Information about the nominated occupation

1. 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.

2. The applicant has provided the name of the occupation, Roof Tiler, and its corresponding ANZSCO code of 333311 and the location in Sydney which is where the occupation will be carried out.

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

Certification relating to conduct under s 245AR(1)

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.

2. Having perused the Department’s file, the Tribunal is satisfied that the applicant has provided the required certification as part of its nomination.

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

No adverse information known to Immigration

1. 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.

2. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to Immigration, either about the nominee or a person associated with the applicant.

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

Specified occupation

1. 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: reg 2.72(10)(b).

2. The relevant instrument, IMMI 17/060, includes the occupation of Roof Tiler on the Medium and Long Term Strategic Occupations List of that instrument, and it is not subject to any caveats.

3. Having compared the position description provided to the Department and the tasks set out in the offer of employment with the ANZSCO occupational description for a Roof Tiler (ANZSCO 333311), the Tribunal is satisfied that the tasks of the nominated position substantially correspond to those listed in the ANZSCO occupational description.

4. For these reasons, the requirements of reg 2.72(10)(aa) are met.

5. The relevant instrument does not require the nominated occupation of Roof Tiler to be supported in writing to the Minister by a specified organisation before the nomination. For these reasons, the requirements of reg 2.72(10)(b) are not applicable.

Terms and conditions of employment

1. 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).

2. 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.

3. 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).

4. 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). The nominee’s proposed earnings of $55,000 are less than those specified in the relevant instrument.

5. Provided to the Tribunal was an extract from the National Building and Construction Onsite Award 2020 which indicated that roof tilers were a level 3 classification with the weekly pay rate being $960.06 or $25.26 per hour. This equates to $49,923.12 per annum. The applicant’s payroll activity summary for the financial years ending 30 June 2020 and 2021 indicated that the nominee was paid $57,601.70 and $61,978.15. The Tribunal was provided with an employment contract dated 1 July 2021 signed by Mr Garratt on behalf of the applicant, but the nominee indicated that the nominee’s salary is $55,162 plus the superannuation guarantee for 38 hours a week. The agreement also includes other terms and conditions such as leave entitlements.

6. At the hearing Mr Garratt stated that Mr Kama was being paid $55,000 and that was in accordance with an Award. Mr Kama started to work for the applicant in 2015 as a casual and was paid around $50,000. The Tribunal referred to the payslips stating that the nominee is a casual and Mr Garratt stated the nominee gets full entitlements and is paid as a full-time employee.

7. The Tribunal has consulted Payscale.com, and the range for the average base hourly rate for a Roofer is from $20.05 (or approximately $39,618.80 annually) to $41.57 (or approximately $82,142.32 annually) with the medium average being $28.43 per hour, or on an annual basis approximately $56,177.68

8. On the above, the Tribunal is satisfied that the proposed salary package for the nominee of $55,162 plus superannuation guarantee attached to the nominated position is within the range of salaries for the occupation and exceeds the relevant Award rate, therefore, the Tribunal is satisfied that the nominee’s salary is no less favourable than that which would be offered to the relevant Australian equivalent.

9. Accordingly, the Tribunal is satisfied that the nominee’s terms and conditions will be no less favourable than the terms and conditions that would apply to an Australian employee performing equivalent work at the same location and the Tribunal finds that the requirements of reg 2.72(10)(c) are met.

Base rate of pay

1. 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 to be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028.

2. 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.

3. 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 instrument IMMI 13/028: reg 2.72(10AB).

4. The nominee’s annual earning is less than the amount of $250,000 specified in the relevant instrument.

5. On the above and on the information and findings made in relation to reg 2.72(10)(c), the Tribunal is satisfied that the nominee’s proposed salary will be $55,162 plus superannuation guarantee and that this is greater than the TSMIT of $53,900. The Tribunal, therefore, finds that reg 2.72(10)(cc) is met.

Certification under reg 2.72(10)(e)

1. 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;

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

   ·     the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.

2. The Tribunal is satisfied that the relevant certifications have been made in the nomination form. For these reasons, the requirements of reg 2.72(10)(e) are met.

Position must be genuine

1. 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.

2. The tasks listed in the current employment contract dated 1 July 2021 are as follows:

• Maintain an up to date and operational trade licence and drivers licence

• Construct and repair roofs on behalf of Roofs Above and Beyond Group Pty Ltd and in accordance with company procedures and Australian Standards

• Install and dress lead work on behalf of Roofs Above & Beyond

• Interact with the office/management in relation to process improvements and customer problems

• Ensure all Roofs Above and Beyond property is accounted for and properly maintained at all times and communicate to office/management any maintenance requirements, equipment and material shortages

• Ensure the yard and vehicles is kept tidy and in order.

• Ensure safe work methods are followed and filled in at all times and that you complete and understand the site specific safe work method statements.

• Personal Protective Equipment (PPE) is worn at all times on the job.

• Keep harness, ladder and various other registers up to date

1. The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the position of Roof Tiler (333311). The tasks listed in ANZSCO for Roof Tiler (3333) are

   ·     studying drawings, specifications and work sites to determine materials required

   ·     erecting ladders and scaffolds

   ·     placing and securing waterproof sheets over eaves

   ·     nailing and stapling roofing underlay to roofs

   ·     aligning starter rows of roofing material with edges of roofs, securing with wire, staples and nails, and overlapping successive layers of tiles

   ·     sizing and cutting roofing material to fit around vents, chimney edges, corners and ridges

   ·     fixing edge and ridge tiles in cement mortar slipping roofing material under pre-fabricated flashing and nailing it down

   ·     caulking and flashing exposed nail heads to prevent leaks

2. ANZSCO states that employees in the occupation of Roof Tiler (333311): ‘cover roofs with tiles, sheets and shingles to form a waterproof surface. Registration or licensing may be required’. It also states that the specialisations are Roof Fixer, Roof Shingler and Roof Slater.

3. ANZSCO lists as a separate occupation, Roof Plumbers (ANZSCO 334115) and states that the occupation: ‘installs, maintains and repairs flashings, metallic roof and wall claddings and rainwater products such as gutters and downpipes. Registration or licensing is required’.

4. At the hearing Mr Garratt stated that the nominee is the hands-on day to day coordinator for the team. There is a work order which lists the jobs to be done and the nominee will go onsite and facilitate the work order being completed. The nominee coordinates the team as to times and quality control and executes the work on the worksite including making sure they have all the correct material.

1. At the hearing Mr Garratt stated that the nominee would go to the worksite to set up the ladders and, if necessary, the scaffolding. Mr Garratt assesses what needs to be done for OH&S and ensures that the OH&S plan is followed, such as whether harnesses are needed and ensuring the perimeter is set up. He will update the OH&S plan if anything needs to be altered. What type of perimeter fencing and scaffolding is required differs with each job as the scope and scale of work can be different. If it is a new job the nominee will: set out the roof ensuring batons are spaced evenly; apply sarking and fix sarking and batons in place; he will set up the tile elevator; lay roof tiles; put valleys and lips in place; and undertake bed and point ridge capping. The nominee may not do all tasks but he will ensure that the team do the tasks and quality control. Also the nominee coordinates with the customer and with the administration team and himself. The nominee does not need to refer to plans but does need to follow the scope of works which sets out what needs to be done and the nominee checks that all the right material is onsite. If the job is reroofing, it has a different scope and includes removing old tiles from the roof. The business does roofing repairs which includes: changing broken roof tiles and damaged sheets; and repointing and repairing roof capping.

2. The Tribunal asked how the tasks of a metal roofer and roof plumber differ from a roofer and Mr Garratt stated it is just a different material as metal sheet replaces the tiles. The nominee has the skill set to perform the task but is not qualified. Mr Garratt stated that the nominee obtained the skills with the business and he did obtain a skills assessment. Mr Garratt was not sure if the nominee had the skills before he started to work for them.

3. The Tribunal referred to roof plumbers being a different skill set which Mr Garratt confirmed as it relates to drainage, downpipes, eaves and box gutters and valleys, anything that takes water from the roof to ground level.

4. At the hearing the nominee stated that he started with the applicant as a casual in December 2015. He became full time in 2017 but he cannot recall what he was paid.

5. At the hearing the Tribunal asked the nominee about his tasks and he responded that he constructs and repairs roofs. On a daily basis he ensures all vehicles are kept tidy and in order, manages the yard work and job sites. He takes off old tiles, puts new sarking on and puts new tiles on. For repairs of roofs the nominee replaces tiles, re-beds tiles, and repoints and replaces tiles.

6. At hearing, when asked for more details as to his tasks, the nominee stated he is given a work order as to what needs to be done and what materials are required. His supervisor prepares the OH&S assessment and he implements the assessment. When the team arrives onsite, he sets up the safety rails; checks that all the appropriate materials are on site; and at the toolbox talk he goes through the work order and delegates tasks depending on what needs to be done. The nominee also stated that he assists with ladders and scaffolding being erected and the tiler elevator. For a new roof they work face by face depending on the size of the roof. They lay the sarking and batons; load up new tiles to lay making sure they are fixed to the roof; once tiles are laid they are fixed with nails to the batons. They cut and grind tiles before they bed and point. For repairs they assess where the leaks are and then fix leaks by changing tiles or replacing flushing or cracked ridges. The nail heads are also covered. Number one rule, never forget to wear your harness.

7. On the above evidence the Tribunal is satisfied that the nominee currently performs nearly all of the tasks listed in ANZSCO, therefore, on all the evidence the Tribunal is satisfied that the position associated with the nominated occupation is genuine.

8. For these reasons, the requirements of reg 2.72(10)(f) are met.

Employment under contract

1. 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.

2. The applicant has provided a signed contract of employment dated 1 July 2021. For these reasons, the requirements of reg 2.72(10)(h) are met.

Work agreements

1. 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.

2. 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

1. 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.

2. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 18/059 which is the 12 months immediately before the nomination application form is lodged. 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.

3. 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.

4. It is not inconsistent with any international trade obligation to require the applicant to satisfy labour market testing as specified in the relevant legislative instrument: IMMI 17/109.

5. The applicant is not exempt from satisfying the labour market testing condition by s 140GBB – Major Disaster Exemption, as the Minister has made no such exemption in this case. Further, the nominated occupation is not specified in the relevant instrument IMMI 13/137, therefore, the applicant is not exempt from satisfying the labour market testing condition: s 140GBC.

1. The business nomination application stated in the section ‘Details of position advertisement’ that the applicant advertised the position through advertisements in the Fairfax News Group newspaper on 15 June 2015 and are ongoing and through the Church community from 1 January 2017 and is ongoing.

2. Provided with the business nomination application and dated 7 September 2017 was a ‘Summary of domestic recruitment efforts by Roofs Above & Beyond’ (the recruitment summary) which indicated the dates or periods of time that advertisements were placed in or on the following as follows:

   Seek (3 times)             29 July 2015 to February 2016
   Fairfax News Group     15 June 2015 to 15 February 2016
   Newscorp Group          9 June 2015 to 15 June 2015

3. The recruitment summary also referred to other modes of advertising and the periods of time for those modes as follows:

   Facebook  4 May 2015 and ongoing every few months
   Church community       Ongoing

4. Provided to the Department, and also dated 7 September 2017, was a list prepared by the applicant of all candidates for the position of roof tiler and a report in relation to the advertisement in careerone.com dated 22 April 2016 indicating that there were: 14 expired jobs; 2 new candidates; and 5 more candidates who had responded to the advertisement for roof tilers, metal roofers and apprentices.

5. Provided with the business nomination application was an email from Fairfax Media dated 5 June 2015 which attached a proof of an advertisement for a roof tiler professional, roof tiling apprentice and roof plumber apprentice. Also provided was an email from News Local dated 5 June 2015 attaching an invoice for placing an advertisement in the Blacktown Advocate, Rouse Hill Times, Hill Shire Times and careerone.com and proof of the advertisements for the same positions. An internal email chain from 10 June 2015 updating progress of the placement of the advertisements on 19 June 2015 was also provided indicating that there had been no applicants.

6. Provided to the Tribunal was an invoice dated 17 August 2017 for 2 advertisements to be placed online with Seek for a roof plumber/metal roofer. Also provided was a list of 19 expired jobs which does not state on its face that the advertisements were for positions with the applicant. The date the advertisement was created, and positions advertised are listed below. For ease of reference also listed is the date 12 months prior to the date and the date of the business nomination application:

   3 June 2011                  Roof Plumber/Metal Roofer
   3 June 2011                  Roof Tiler – Trade Qualified
   3 June 2011                  Apprentice Roof Tiler
   23 August 2011            Roof Tiler – Trade Qualified (or experienced apprentice)
   23 December 2011       Roof Plumber/Metal Roofer
   23 December 2011       Roof Tiler – Trade Qualified
   31 January 2012           Roof Tiler – Trade Qualified
   16 March 2012             Apprentice Roof Tilers
   31 August 2012            Apprentice Roof Tilers
   4 September 2012        Roof Tiler – Trade Qualified
   12 February 2013         Apprentice Roof Tiler and Metal Roofers
   29 July 2015                 Apprentice Roof Tilers & Apprentice Roof Plumbers
   1 October 2015             Roof Tilers, Metal Roofers & Apprentices
   15 January 2016           Roof Tiler

   27 May 2016                 Roof Plumber/Metal Roofer (19 months until next    advertisement)

   8 September 2016       12 months prior to business nomination application    lodgement

   16 August 2017            Roof Plumber/Metal Roofer (21 months until next   advertisement)
   8 September 2017       Business nomination application lodged
   2 May 2019                   Apprentice Roof Tiler
   25 February 2021         Apprentice Roof Tiler & Qualified Roof Tiler
   14 April 2021                Apprentice Roof Tiler & Qualified Roof Tiler & Qualified               Metal Roofer

7. At the hearing the Tribunal explained issues with labour market testing (LMT) and Mr Garratt stated that advertising is not working as the applicants they get are not qualified. Most staff he has now, he obtained through word of mouth. He confirmed that prior to the business nomination being lodged he advertised the position on Facebook and at the Church.

8. At the hearing the Tribunal discussed its concerns with the LMT. In particular, the information and details of the applicant’s advertising provided to the Department were outside the 12 months preceding the business nomination application. Although the applicant stated in the business nomination application that recruitment attempts were also made through Facebook and at the Church, no details of those attempts were provided except as follows: on Facebook, from 4 May 2015 and ongoing every few months; and at the Church the advertisements were ongoing. Further, the advertisement provided to the Tribunal which was placed within 12 months prior to the business nomination application being lodged was for a roof plumber/metal roofer. The Tribunal gave the applicant time to provide a submission on advertising for a roof plumber/metal roofer and not for a Roof Tiler. The Tribunal received a lengthy and detailed submission after the hearing, the main points of which are considered below.

9. The main argument put forward in the submission is that the Tribunal should accept the ‘Summary of domestic recruitment efforts’ document as sufficient evidence to satisfy the LMT requirement in this matter. It was further submitted that ‘no helpful additional details can be provided to evidence such a marketing, other than the specific reference to it in the prescribed recruitment efforts document’. However, the summary document is not a prescribed form that is mandatorily required by the legislation. The Department ‘encourages’ its use as it assists the applicants in providing the necessary LMT information and in turn, assists the delegate’s assessment of the LMT criteria. Therefore, to suggest that the applicant has met the LMT requirement by simply providing the summary document is mistaken particularly in circumstances where further details to supplement the summary document could have been provided by way of screen capture of the social media posting and copies of Church community notices if any. Alternatively, the applicant could have provided a statement to describe those recruitment efforts in the absence of any documentary evidence to substantiate the claims in the summary document.

10. In relation to the above, s 140GBA(6)(a)(i) says no more than to provide ‘the details of any advertising…of the position’ and does not specify the type of ‘details’ that would be required, so there is no mandatorily required corroborating evidence. However, where the evidentiary satisfaction is in issue as in this matter, requiring further details about the content of the advertisement (e.g. position title, duties, qualification, remuneration, date posted) is not unreasonable. In this regard, noting that obtaining copies of past advertisements would be difficult due to the passage of time, oral evidence as to the manner/method of the recruitment including what specific information was included in those social media and church community recruitment efforts would be relevant information to supplement the summary document. To this point Mr Garratt at the hearing, did confirm he tried to recruit roofers on Facebook and through the Church, as well as word of mouth generally.

11. The applicant argues that ‘the AAT has historically taken different views on what information may be considered for a member to be satisfied’ of the LMT requirement. The Tribunal’s views have not necessarily been different as the issue here is the Tribunal’s satisfaction on the evidence before it, and that is essentially a matter for each constituted Tribunal, having regard to the particular circumstances of each case. That is, the evidence to which a Tribunal has regard and the weight it gives to any evidence is a factual matter for the Tribunal and it is within its entitlement to give greater or lesser weight to the evidence before it – this principle is well established in case law: NAHI v MIMIA [2004] FCAFC 10; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; MIEA v Wu Shan Liang (1996) 185 CLR 259.

12. The submission references other Tribunal decisions, however, each case is specific to its own circumstances and evidence, and the Tribunal is not bound by previous Tribunal decisions: Bhatt v MIAC [2012] FMCA 317; DZAAS v MIAC [2012] FCA 828. Further, as to the submission that ‘whether evidence of advertising that had been historically completed could be accepted by the Tribunal if it had not been presented to the Department at the time the nomination application was lodged’ the interpretation of ‘accompanied by’ has been considered in the Skilled visa context. Where an application must be ‘accompanied by evidence’, case law in the Skilled visa context has held that the evidence may be provided after the lodgement of the application but there must be a close temporal connection to the time of application: Anand v MIAC [2013] FCA 1050.

13. The information provided to the Department related to advertising for the position of Roofer which was either side of the 12-month period prior to the lodgement of the business nomination application. Further, information was provided in the application itself and in the ‘Summary of domestic recruitment efforts’ and Mr Garratt confirmed at the hearing that advertisements for the position were placed on Facebook and at the Church. Although very scant, a little evidence is still evidence, and the Tribunal is satisfied that the evidence of LMT was provided with the nomination for the purposes of s 140GBA(3)(b). The Tribunal will now consider whether the recruitment effort of the applicant was sufficient to satisfy the remaining provisions of s 140GBA(3) and (5).

14. The Tribunal has taken into consideration all evidence provided to the Department and subsequently to the Tribunal including the oral evidence of Mr Garratt. Despite the very scant information relating to evidence of LMT during the 12 months preceding the lodgement of the business nomination application the Tribunal is satisfied that unpaid advertisements were placed on Facebook and at the Church. The Tribunal notes that only evidence of an advertisement being placed on a job recruitment online site 12 months prior to the lodgement of the business nomination is not for the nominated occupation of Roof Tiler but for a roof plumber/metal roofer which requires registration. This may mean that the advertisement was not for an equivalent position, however, due to the Tribunal’s earlier findings the Tribunal does not need to reach a final conclusion on this issue.

15. Despite the Tribunal’s concerns, the applicant has undertaken LMT within the specified period. The Tribunal is, therefore, satisfied that the applicant has been unable to successfully recruit from within the Australian labour market for the nomination position.

16. For these reasons, the LMT requirements in s 140GBA are met.

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

DECISION

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

Namoi Dougall
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.