Roxset Australia Pty Limited (Migration)

Roxset Australia Pty Limited (Migration) [2021] AATA 1676 (8 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Roxset Australia Pty Limited
CASE NUMBER:  1815972
HOME AFFAIRS REFERENCE(S):          BCC2017/1870133
MEMBER:Alan McMurran
DATE:8 April 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 08 April 2021 at 2:50pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Wall and Floor Tiler – genuine position – qualitative analysis of the duties and tasks – ANZSCO position description – tasks of the nominee in the context of the nominator’s business – ‘equivalent or substantially equivalent’ to the tasks associated with the nominated occupation – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The nomination application

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 May 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 13 November 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The applicant
The applicant carries on business Australia-wide providing refurbishment and renovation services for wall and floor finishes in (for the most part) existing buildings.
Some of the buildings are quite old and require significant work and can vary from small local residences including swimming pool coatings, laundries and the like to large commercial operations, where the buildings are predominantly those involved in food production and storage, including large commercial kitchens.
They also include abattoirs and premises operated by well-known enterprises involved in the food industry such as Steggles Chickens, Nestlé, Cargill Australia, and Bega, all of which utilise premises requiring clean and serviceable surfaces (floors and walls).
The applicant repairs, replaces and treats old tiled surfaces, walls and flooring with a combination of tiling repairs and replacement, and utilising its own unique Epoxy resin, specially developed for the purpose and which is used to resurface those areas so as to render them easy to clean, serviceable and waterproof.
The nominee
The nominated occupation was for a Wall and Floor Tiler (ANZSCO 333411). The nominee, Alexandru Iacob is a 36 -year-old Romanian citizen (“the nominee”). The nominee has applied for the related Subclass 457 visa and review of the refusal of the visa for want of an approved nomination [1].
Department decision
[1] Tribunal file 1823110
The delegate decided not to approve the nomination on 22 May 2018, on the basis that the applicant did not satisfy 2.72(10)(f) of the Regulations because the delegate found the position associated with the nominated occupation was not “genuine”, as the tasks for the occupation did not align with the position.
The delegate assessed the tasks by reference to the ANZSC0 guide and found the position description in the application referred primarily to the supply and installation of Epoxy resin and flooring systems. By comparison, the nominated occupation and ANZSCO position description requires that the nominee is responsible for laying tiles, as opposed to fixing and resetting tiles before pouring of sealant.
The delegate found laying tiles was “only a minor part of the duties” of the nominee and was therefore not satisfied the described role for the nominee aligned properly with the majority of designated tasks of a wall and floor tiler.
Tribunal process
On 30 November 2020, the Tribunal sent a request to the applicant under s. 359 (2) of the Act, inviting the provision of updated information.
On 14 December 2020, the applicant responded with multiple submissions.
On 28 January 2021, the matter was constituted to a Member, who determined that it was not possible to deal with the review favourably and without a hearing.[2]
[2] s.360(2)(a)
On 15 February 2021, the Tribunal invited the applicant to a combined hearing with a review of the visa application by the nominee.
On 31 March 2021, the applicant provided further multiple submissions.
The applicant appeared before the Tribunal on 6 April 2021 in a combined hearing with the nominee. A Director of the applicant and the Company Secretary (Mr Bruce Willan), and its Sales Manager (Mr Tim Fullagar), both appeared to give evidence and present arguments, together with the nominee. The Tribunal also received submissions from the representative (Mr Richard Hardy, solicitor) appearing for all applicants.
The hearing was conducted by video and in accordance with the Tribunal’s pandemic protocol, and so as to implement the objective of finalising the reviews in a fair, just, economical, informal and quick fashion. The Tribunal determined this was the most efficient fashion by which the reviews might be conducted. No objection was taken to the process, nor any adjournments sought. At the hearing, the applicants and the solicitor affirmed for the Tribunal that the process should continue without further delay and that they were ready to proceed.
An interpreter from English to the Romanian language was also present. The interpreter was only called upon if and when requested by the nominee, who spoke English during the hearing. On conclusion of the proceedings, the nominee confirmed (both in English and Romanian) that he had understood the process without the need for the interpreter. The other witnesses appearing were Australian citizens and did not require translation.
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 r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The Tribunal has available for consideration electronic extracts from the Department’s files for both the applicant and the nominee, together with the Tribunal’s files for each review. In addition, the Tribunal has the recent submissions made in response to the Tribunal’s request and the oral evidence provided at the hearing. The Tribunal also has regard to the Act and the Regulations and departmental Policy.[3]
[3] PAM 3
The Tribunal has referred below in these reasons to the relevant evidence necessary for the review, and for the sake of efficiency, not necessarily every document produced, and submissions made are referenced.
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 r.2.73.
On the basis of the available information and the Department records, the Tribunal finds that the applicant is nominating an occupation (Wall and Floor Tiler) (the occupation) under s.140GB(1)(b): r.2.73(1A)(a).[4]
[4] S 140 GB(2) provides an approved sponsor may nominate a proposed occupation, program or activity. R.2.73 (1A) (a) refers to sub regulations (1)-(6) and (9) which set out the process for the nomination, which must be made using the Internet and on the approved form.
The Tribunal further finds that the applicant has identified in the nomination a proposed applicant (the nominee) for a Subclass 457 visa, and as the person who will work in the occupation. The application was made as required under s.140GB(1)(b) using the approved form and by payment of the required fee.
The Tribunal is satisfied the applicant has identified the nominee in the nomination as Alexandru Iacob. The applicant has included the certification that the applicant has not engaged in a contravention of s.245AR(1) of the Act: r.2.73(4B), and which relates to obtaining a benefit in return for the occurrence of a sponsorship-related event.
The nomination includes the location of the applicant’s business at Pymble, in Sydney, which is the applicant’s head office. The applicant also operates warehouse premises on the Central Coast of New South Wales, which is used to house equipment including motor vehicles, tools and relevant materials. The nominee attends where directed to work on sites as required by the nominator. Those sites may be located around Australia, depending upon the customer’s location.
The Tribunal is satisfied the application includes the ANZSCO code (Unit Group 3334) where the applicant is an approved standard business sponsor current for the period from 17 May 2018 to 17 May 2023.
For these reasons the requirements of r.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.
A review of the Department records verifies that the applicant’s business sponsorship was approved for the period specified from 17 May 2018 to 17 May 2023.
The applicant is not a party to a work agreement.
For these reasons the requirements of r.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 the nominee as the “relevant person” who will work in the nominated occupation as the Wall and Floor Tiler. At the hearing, the Tribunal confirmed the nominee’s identity in evidence and is satisfied the applicant has identified the nominee as the person named in the application as the proposed applicant for the Subclass 457 visa.
For these reasons the requirements of r.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: r.2.72(6)(a) and r.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: r.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: r.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: r.2.72(10)(g).
The Tribunal finds in the present instance and for the purposes of this application on review that the person identified to work in the nominated position is not a Subclass 457 visa holder.
The nominee gave evidence that he first came to Australia in about 2012, initially on holiday and then as a student where he studied business management and was awarded a Diploma of Building and Construction (Building) on 23 June 2017.
The nominee also completed a skills test based on recognised prior learning and was awarded a Certificate III in wall and floor tiling on 27 May 2016 from a registered training organisation.[5] Upon expiry of the nominee’s student visa in 2017, the nominee has remained on a bridging visa pending this application outcome.
[5] RTO 91647 (Institute of Training)
For these reasons the requirements of r.2.72(10)(g) do not apply.
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 instrument IMMI 17/060; 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 Tribunal finds it is satisfied the applicant has provided information concerning the name of the occupation and the corresponding ANZSCO code[6].
[6] ANZSCO 333411
The Director and the Sales Manager gave evidence about the operation of the applicant’s business and where it is located, principally working from its head office at Pymble in Sydney and from the Central Coast premises.
Evidence was also provided as to the location of various sites around Australia where the applicant’s employees are sent to complete customer contracts, returning to Sydney upon completion.
Those sites varied from suburban locations in the Sydney metropolitan area and the Central Coast, to mining sites in Western Australia, Groote Eylandt in the Gulf of Carpentaria (for a commercial kitchen for BHP) and other parts of regional Australia where large commercial operations in the food industry occur.
For these reasons the requirements of r.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 has reviewed the available information from the Department and is satisfied that the applicant has provided the requisite certification stating the nominator has not engaged in conduct relating to the obtaining of a benefit in return for the occurrence of a sponsorship-related event.
For these reasons the requirements of r.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 rr.1.13A and 1.13B.
On the available information, and following questions put to the Director at the hearing, the Tribunal is satisfied there is no adverse information known to Immigration about the applicant or a person associated with the applicant.
For these reasons the requirements of r.2.72(9) are met.
Specified occupation
r.2.72(10)(aa)
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 IMMI17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument.
In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal finds on the information available that the nominated occupation, Wall and Floor Tiler, and its 6-digit code ANZSCO 333411, correspond to an occupation and 6-digit code specified in the relevant instrument, IMMI 17/060.
For these reasons the requirements of r.2.72(10)(aa) are met.
r. 2.72(10)(b)
The specified occupation is not subject to any applicability conditions, nor required to be supported by a specified organisation.
For these reasons the requirements of r.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.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A).
‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer.
Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified [7] in the written instrument IMMI13/028: r.2.72(10AB).
[7] Specified earnings in the Instrument are $53,900
The Tribunal finds on the available evidence that there is no comparable Australian citizen or permanent resident performing equivalent work at the same location as the nominee.
The applicant has produced an employment agreement updated as at 30 March 2021. The agreement provides for a salary package of $85,000 per annum, in addition to compulsory superannuation. The agreement contains standard terms and conditions relevant to the Australian workplace and as required under Commonwealth legislation[8] and the industry Award [9].
[8] Fair Work Act
[9] Building and Construction General On-site Award [MA000020]; See also >
The employment agreement is contingent upon an approved nomination and subsequent issue of the relevant visa by the Department.
The Tribunal finds the applicant exceeds the legislated income threshold[10] for the nominee’s agreed salary package. The Tribunal further finds it is satisfied that the terms and conditions of the nominee’s agreement exceed those generally available to employees working as Wall and Floor Tilers. The Australian government website[11] , JobOutlook, by comparison recommends the average salary in the industry is approximately $69,000 per annum.
[10] $53,900
[11] type="1">
The Tribunal finds therefore that the nominee’s earnings are no less favourable than those for the relevant Australian equivalent employee.
For these reasons the requirements of r.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 instrument IMMI13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI13/028 [r.2.72(10AB)].
On the available evidence, the applicant has shown, and the Tribunal accepts that the nominee’s annual salary package is in the agreed sum of $85,000 per annum, plus superannuation.
The Tribunal finds that the annual earnings for the nominee are equal to or greater than the income threshold specified in the relevant instrument.
The Tribunal is satisfied that the base rate of pay under the terms and conditions for an equivalent Australian citizen or permanent resident would be in a sum of approximately $69,000 per annum[12]. The base rate of pay for the Australian equivalent is therefore greater than the legislated income threshold for the occupation, and which Australian equivalent amount is exceeded in the present instance by the salary package in the employment agreement with the nominee.
[12] JobOutlook
For these reasons the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;
·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 IMMI13/067;
·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 IMMI13/067; 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 IMMI17/060.
The ANZSCO guide provides a useful summary of a description of an occupation and the relevant tasks associated with that occupation. The Tribunal finds it is a reliable tool to assist in determining what tasks are required for the nominated occupation. It is necessary for such a guide to be general in its application, so that an objective analysis of a description of the work being carried out by an employee (or nominee) is required in each case.
The occupation in this instance of Wall and Floor Tiler, is described in the guide as persons who “lay ceramic, clay, slate, marble and glass tiles on external and internal walls and floors to provide protective and decorative finishes”. Tasks include:
·examining plans, measuring and marking surfaces and laying out work
·preparing wall and floor surfaces by removing old tiles, grout and adhesive, filling holes and cracks, and cleaning surfaces
·spreading adhesive onto prepared surfaces and tiles, and setting tiles in position
·using tile-cutting tools to cut and shape tiles needed for edges and corners, and around objects such as fittings and pipes
·ensuring tiles are correctly aligned and spaced
·grouting tiles, and cleaning and removing excess grout
·applying waterproofing systems
·may lay floors of granolithic, terrazzo, cement or similar composition
·may lay coloured tiles in patterns to create mosaics
The applicant and the nominee spent considerable time at hearing discussing with the Tribunal the work actually performed by the nominee and the tasks associated. That evidence is discussed further below in determining the issue of “genuineness” in relation to the current position, associated with the nominated occupation.
On the available information, the Tribunal is satisfied that the tasks for the position of the nominee as described coincide with a significant majority of the tasks listed in the nominated occupation in the ANZSCO guide.
The Tribunal heard evidence from the nominee as to his qualifications which include a building construction management Certificate and a Certificate III in wall and floor tiling. The nominee gave evidence that he has completed more than 3 years’ experience in the occupation and the position. He stated that he is required at each worksite to examine plans and drawings for work being undertaken, and to measure and mark out the surfaces being worked upon.
The nominee is required to prepare those surfaces through the removal of existing or old and broken tiles, worn grout and adhesive and for making minor repairs including conducting cleaning, preparatory to resurfacing.
The nominee gave evidence that he is required in most of the applicant’s worksites to resettle or replace old or “drummy” tiles, which need repositioning and/or adhering in position. The nominee explained that even where an Epoxy-coating is applied over old or existing tiles, there are usually partly-tiled areas remaining and which require repair. This involves the use of tile cutting tools where tiles are replaced or installed around edges and corners and other objects including machinery and conduits.
The nominee explained that the installation of the tiles requires grouting, aligning and spacing and installation through cleaning and removing of excess grout and which is orthodox tiling process. The nominee gave evidence that for several years following his initial engagement by the applicant, this form of tile work was the majority of his workload. He explained that at the time of application, although learning the role of Epoxy-coating and use of the applicant’s product, he was required to carry out mainly orthodox tiling repair and installation.
The applicant’s witness (the director) explained in his evidence the importance of ensuring the work completed by the nominee results in waterproofed surfaces, applied by the nominee, and which are an essential part of the installation. The director further explained that the applicant’s business involves large commercial sites used in the food industry for the most part, although it is still engaged in doing smaller jobs with some residential application. The nominee himself explained that he works at all or any of these sites as directed.
The Tribunal finds on the evidence that the nominee is not usually engaged in laying granolithic, terrazzo, cement or similar products, or mosaic tiling.
The Tribunal is satisfied on the available information and following the oral evidence obtained at the hearing that the tasks of the position for the nominee include a significant majority of the tasks as listed in the ANZSCO guide. The Tribunal is further satisfied that the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO guide.
For these reasons the requirements of r.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.
In Cargo First Pty Ltd v MIBP [2015] FCCA 2091 the Federal Circuit Court examined the operation of cl 2.72(10)(f) and expressed the relevant test at [30] as follows:
What is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister’s decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation.
The recommended approach then to determining whether the position is “genuine” under r. 2.72(10)(f), is in determining whether the position really “is what it purports to be”, and requires the Tribunal to undertake a qualitative analysis of the duties and tasks the nominated employee actually discharges (or is to discharge) in the nominated position, and to compare that to the occupation described in ANZSCO.
The necessary qualitative analysis requires more than just examining whether the duties and tasks the employee discharges include the majority of those referred to in ANZSCO. The starting point for the Tribunal is the tasks set out in the relevant ANZSCO classification, as set out above at paragraph 82.
Department policy recommends, for the avoidance of doubt, that the issue of “genuineness” is not determined by whether the person or the position is “needed”, but whether the position as described and the associated tasks actually exist, and that the occupation is what it purports to be.
Policy suggests that factors which might assist in that decision include not only whether the nominee undertakes a significant majority of the suggested tasks, but that the duties of the position are consistent with the business context, including size, and as might be evidenced by a relevant duty statement, a description of the organisation of the business and its activities, and evidence that these activities are not new or “proposed”, but are actually in place.
Nominees who undertake a broad range of duties which include other tasks, should demonstrate on the available evidence that they have the appropriate skill level and regularly perform the majority of tasks associated with the nominated position, even if those tasks could be performed by other and less-skilled employees.
In this instance, the nominee gave evidence firstly that for his initial employment, his tasks routinely involved laying tiles on internal floors and walls. The nominee then gave evidence as to the current context of his tasks and duties within the business. As the applicant’s principal product described involves coating existing surfaces with a waterproof and serviceable sealant and non-slip adherent, and which is quick and efficient to apply, the Tribunal raised questions whether this form of installation involved wall and floor tiling.
The nominee gave evidence that the bulk of the applicant’s work sites involved old or renovated premises involved in the food production industry. A lot of water is used in those sites which produces wall and floor tile degradation and breaks down surfaces including grouting, which needs to be replaced or repaired. He explained that he is first briefed for the job, usually by the sales manager, and recommends a team or “crew” to attend the site.
This routinely might be 1 or 2 other employees. He said he then carries out a site inspection to determine what is required, including reading plans and drawings to assess floor levels and angles for water flow, once installation is complete. He says that he needs to work out what tools and materials will be required to execute the floor and/or wall plan. He explained he is “hands-on” once the job starts and he makes the work decisions including heights and levels, repairs and/or removes existing old tiles, and applies the new surfaces and coatings.
He explained that it is necessary when tiling to cut the tiles and arrange them for the flooring where equipment and corners are involved, and where existing tiles must be replaced. He explained that all the jobs are different some requiring more tiling than others and some requiring less Epoxy coating and sealant than others. It would all depend on the particular job and requirements in question.
The director and the sales manager also gave evidence describing the nature of the work and how it involves not only applying sealants and Epoxy, but installation and repair of existing tiling. The director gave evidence the applicant’s business has operated since on or about 2012 and has an annual turnover of approximately $6-$7 million employing 12 or 13 people “on the tools”, in addition to administration staff at the Pymble head office, and including an internal accountant, the sales manager and the director and two employees at the Central Coast warehouse. He gave evidence about developing the epoxy product which is now becoming a recommended and standard application for the food industry sites and warehouses attended by the applicant. He explained that the tiling industry, like many industries, has developed new techniques and products which go beyond more “traditional” and recognised tasks and activities associated with wall and floor tiling, such as replacement.
The representative/solicitor appearing, made a submission that however the tasks of the nominee were considered, and in the context of the applicant’s business, the nominee was performing a significant majority of the tasks as specified in the guide.
The Tribunal notes that the issue of whether a position is “genuine” has been considered on numerous occasions by the courts. A convenient summary of the application of the ANZSCO guide appears in a decision of Judge Manousaridis[13] , where the judge notes rhetorically:
“What do the words “is genuine” add? Only this: that the claims the applicant makes about the tasks he has been employed to perform or which he will be employed to perform by the approved sponsor are true”.[14]
[13] Khan v Minister for Immigration & Anor [2016] FCCA333
[14] Ibid at par.12
The judgement continues its description of the steps involved as to how the issue is determined, including enquiring “Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO”?[15]
Are the tasks in this instance “genuine”?
[15] Ibid at 14
The Tribunal has listened carefully to the evidence and reviewed the supporting documentation. The Tribunal finds that:
·the nominee is routinely required to cut, position and lay/re-set tiles on internal floors and walls on skirtings and around equipment, including in circumstances where that forms a minor component of the total works
·replaces “drummy” tiles
·reads, interprets and applies the requirements from construction drawings and plans
·prepares sites including removing old tiles and surfaces
·places adherent on surfaces, and applies Epoxy waterproof coatings to existing cleaned and prepared surfaces, including old tiles
·uses cutting tools and other equipment associated with wall and floor tiling and surfacing
·routinely performs the majority of the tasks as specified in the guide
The Tribunal finds the nominee’s tasks are “equivalent or substantially equivalent” to the tasks of a wall and floor tiler, and as specified in the guide.
The Tribunal further notes that the guide is after all a guide, not legislatively prescriptive and ought be applied as the context so admits, appropriately and without limiting its application through strict adherence and by “ticking off” suggested tasks, which are by definition generic and need to be considered, but also with regard to taking into account the context within which the tasks are performed including industry standards and expectations. The modern tiling industry, according to its industry Association[16], includes in its mission statement reference to tiling manufacture which includes adhesive/grout and waterproofing products, described as “associated products”, and describing members as “tile installers and tiling water-proofers”.
[16] the Tiles and Tiling Industry Association Australia (TTIAA)
Whereas in the objective circumstances of the occupation in this instance, the emphasis of the applicant’s product is on waterproofing and sealants, as opposed to only tile laying and installation (which work is also included), that does not mean a broader context within that industry ought not be considered.
It is reasonable to conclude in the Tribunal’s view, in this instance, and taking a broad as well as specific view of context, that such work as described by the nominee falls within the occupation as specified in the guide and includes a majority of the tasks described therein for the position.
On that basis, the Tribunal finds that the tasks in this instance are in fact “genuine”.
For these reasons the requirements of r.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 instrument IMMI, and in respect of which there is no current legislative instrument that applies.
The application includes a copy of the applicant’s employment contract with the nominee updated on 30 March 2021. The Tribunal finds that the applicant will engage the nominee only as an employee under the written contract of employment.
For these reasons the requirements of r.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): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
The Tribunal finds on the available information that the applicant is not a party to a work agreement.
For these reasons the requirements of r.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 s.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 IMMI13/136 . In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; 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.
S. 140 GBA provides that the approved sponsor (the applicant) must satisfy the requirement to have undertaken labour market testing and in the period of 12 months of the date of application (13 November 2017). The testing in this instance by advertising for the position was required to have occurred in the period of 12 months from 13 November 2016.
The evidence of market testing must include information about attempts to recruit suitably qualified and experienced Australian citizens or permanent residents to the position and may include copies of market research within 4 months of the application relevant to the nominated occupation, or expressions of support from the Commonwealth State or Territory government authorities, or any other type of evidence determined by legislative instrument.
The Tribunal notes in this instance, that the relevant legislative instrument IMMI13/136 does not specify any other type of evidence, other than the requisite period of 12 months for testing before filing the application and as the appropriate time period.
There is no evidence before the Tribunal that any Australian citizen or permanent resident was made redundant or retrenched from the nominated occupation either before or after recruitment of the nominee ((s.140GBA(4A)).
What is the evidence before the Tribunal?
The applicant has provided a copy of a tax invoice from the Internet platform Seek in the sum of $297 and dated 24 February 2017. The invoice was in respect of an advertisement at that time for “Epoxy Flooring” seeking a “highly motivated team player to join our installation workforce. Specialising in Epoxy floor finishes for the commercial food and beverage industry”. The advertisement refers to the nominator’s location at Somersby on the Central Coast and seeks an applicant who “ideally (has) a background in Epoxy flooring installations”. It specifies that a “trade qualified person in similar fields such as: painting and decorating, tiling, spray painting/panel beating, vinyl/carpet laying and the likes will also be considered.”
The applicant submits that the advertisement is appropriate for the position and is drawn to attract wide interest from as many possible trade applicants as might prove to be available or responsive. The evidence is that no suitable Australian citizen or permanent resident responded to the advertisement.
The applicant had located the nominee upon referral from another employee who had worked with the nominee in a previous employment. The nominee was first interviewed by the Director in 2015 before he commenced employment, initially on probation and while still a student. The nominee commenced full-time in about April 2017 pursuant to a written employment agreement and on a salary of $60,000 per annum plus superannuation, and in anticipation of the lodgement of the nomination application.
The Director and the Sales Manager gave evidence of the difficulty in recruiting suitable and available tradespersons to fill positions. This evidence is corroborated by a recent report from the Australian Government, Department of Jobs and Small Business. The report dated October 2018 found that there is a skill shortage for wall and floor tilers in the ANZSCO unit group 333411. The report states that “Employers continue to attract a high number of applicants and very few are considered to be suitable. Many applicants lack the employability skills required or were seeking work arrangements (such as subcontracting) that differed to the employer’s requirements.”
The report goes on to state that employers recruiting for positions on the east coast “fared the worst” filling only 13% of vacancies. It further states that “employers very commonly noted lacking a qualification and/or trade experience”, and unsuitability due to language difficulties which “hindered their abilities to understand instructions and interact with clients”.
The report revealed that demand for the occupation is influenced by a high level of construction activity in both residential and non-residential sectors which currently “stands at historic high levels”, and where many trades persons are operating as subcontractors and/or are unwilling to be employed.
The Tribunal finds that notwithstanding its recruitment of the nominee from 2015, it advertised unsuccessfully in 2017 for the position. The Tribunal finds it is satisfied that the applicant has made a reasonable attempt at recruitment during the relevant period required by the regulation, and as evidenced by the documents produced, and in circumstances where at the time of application, there were no specified requirements in the relevant instrument under the regulation specifying the type or quantum of advertising.
The Tribunal is satisfied that the applicant has undertaken the requisite labour market testing, and that no suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder was readily available to fill the nominated position.
For these reasons, the labour market testing requirements in s.140GBA are met.
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.
Alan McMurran
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.

[2021] AATA 1676

8 April 2021

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