SHARP TOOLING (AUST) PTY LTD (Migration)

SHARP TOOLING (AUST) PTY LTD (Migration) [2023] AATA 1528 (19 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sharp Tooling (Aust) Pty Ltd
CASE NUMBER:  1926739
HOME AFFAIRS REFERENCE(S):          BCC2019/4143035
MEMBER:Wan Shum
DATE:19 May 2023
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 19 May 2023 at 11:41am
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – metal mechanist – labour market testing – advertisement did not include salary but summary includes hourly rate as industry practice – genuine position – nominee working in position and skills shortage in sector – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA(3)(b)(i), (5), (6A)
Migration Regulations 1994 (Cth), rr 2.72(3), (10)(a), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 September 2019 to refuse to approve the nomination made on 21 August 2019.
A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations). The occupation must be nominated for a Subclass 482 visa in one of 3 alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. Additional criteria are specified in s 140GBA of the Act regarding labour market testing.
In this case, the applicant applied for approval on 21 August 2019 to nominate the occupation of Metal Machinist (First Class) for a Subclass 482 visa in the Medium-term stream.
The person identified for the position was Mr Miguel Angel Contreras Cabrera, who lodged an application for a Subclass 482 visa in connection with this nomination.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy the labour market testing condition and therefore did not meet s 140GBA of the Act.
As a consequence, Mr Contreras Cabrera’s visa application was refused.
The applicant and Mr Contreras Cabrera sought review of their respective decisions and were represented in relation to the review by the same registered migration agent.
Mr Albert Carrion appeared on behalf of the applicant before the Tribunal on 27 April 2023 by videoconference using Microsoft Teams. The Tribunal also received oral evidence from Mr Contreras Cabrera.
For the following reasons, the Tribunal has decided to set aside the decision not to approve the nomination and substitute a decision that the nomination is approved.
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 work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2). For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.
There do not appear to be any relevant international trade obligations in the circumstances of this case, as the person identified for the position, Mr Contreras Cabrera (the nominee) is a national of Peru. Nor is the nomination subject to the major disaster exemption or the skill and occupational exemptions – s 140GBB and s 140GBC.
The applicant operates a machinery/tooling business in Wetherill Park, a suburb in Sydney New South Wales. According to ASIC records from October 2022, the applicant (ABN 14 003 668 755) was registered on 08 December 1988 as an Australian Proprietary Company Limited by Shares. The current Director is listed on ASIC records as Mr Eugenio Alberto Carrion (which appears to be Mr Albert Carrion’s full name), and he holds the majority of ordinary shares, 990, with 10 shares held by Mr Marcelino Carrion. The business name registered to the applicant is: ‘A C SPECIALISED TOOLING’. Mr Carrion advised during the hearing that he is the Managing Director.
The application form was completed with the main location where the nominated person would be working as Wetherill Park, New South Wales, postcode 2428, with the position to be filled identified as ‘CNC Setter/Operator’ with the occupation of Metal Machinist (First Grade) ANZSCO code 351112.
To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the applicable instrument, which in this case is LIN 18/036. In addition, the nomination must be accompanied by the evidence specified in the instrument made under s 140GBA(6A) relating to labour market testing and the labour market testing must have been undertaken in the manner determined under s 140GBA(5). The relevant instrument in this case for all of these requirements is LIN 18/036.
It is also a requirement that:
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous 4 months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
In respect of labour market testing, the nomination application form was completed with details of the advertisements being: SEEK website from 6/5/2019 for 4 weeks and ongoing with MACRO RECRUITMENT from 22/7/2019.
The following answers were entered in response to the questions listed under the section for content of the advertisements:
Position title of the job advertised:
CNC Setter/Operator
Language the advertisement was published in:
English
Was the salary being offered included in the advertisement?
No
Was the position advertised as being full-time?
Yes
The Tribunal explained to Mr Carrion that it did not appear that labour market testing was undertaken in the manner set out in LIN 18/036. In particular, the Tribunal noted that the copy of the advertisement which had been provided to the Department did not include the salary being offered. This is a requirement under s 8(4)(d) of LIN 18/036. As explained during the hearing, the nominated position must be advertised in at least 2 advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements set out in LIN 18/036.
Mr Carrion gave evidence that another recruitment company had also been used to advertise the position. The representative sought additional time to provide further details of job advertisements and following the hearing, the Tribunal received copies of the SEEK advertisement posted on 6 May 2019 with a separate summary of relevant details and a copy of an email from Craig Beechley of All Manufacturing Personnel Pty Ltd dated 3 May 2023. In respect of the former, although the pay rate does not appear on the advertisement itself, the summary of the SEEK advertisement reflects that a pay range of $30-35 per hour was indicated. Mr Carrion had explained at the hearing that the manufacturing industry uses wages per hour rather than an annual salary. Having regard to this practice, the Tribunal considers that it would have been possible to determine the salary for the position and is prepared to accept that the advertisement posted by the applicant on SEEK met the requirements of s 8(4) of LIN 18/036.
The Tribunal does not consider that there is sufficient information before it to find that the job advertisements placed by Macro Recruitment met the requirements of s 8(4). However, the information from All Manufacturing Personnel Pty Ltd, which is the other recruitment company used, reflects that they had posted 4 ads to the SEEK job board for the applicant (not 5 as claimed), with the ads for a CNC Programmer/ Machinist Operator posted on 28 March 2019, 7 May 2019, 31 May 2019 and 3 July 2019, and the ad for a CNC Programmer/ Machinist – Okuna and fanuc multi-axis machines. The advertisement for a ‘CNC Programmer/ Machinist – Okuna and fanuc multi-axis machines’ was posted on 2 July 2019 and the list of job advertisements which was attached to the email showed job advertisements in total matching the dates set out in the email.
The relevant period for the purposes of labour market testing in this case is 21 April 2019 to 21 August 2019 being the 4-month period prior to the nomination application. Therefore, the advertisement posted on 28 March 2019 does not meet the requirements in respect of the period within which the labour market testing needed to have been done. The advertisement of 2 July 2019 reflects that an hourly rate of $35-45 per hour appeared on the post. It also includes the title of the position, the skills or experience required and the name of the recruitment agency. This advertisement appears to meet the requirements of s 8(4) of LIN 18/036.
Having regard to the additional information before the Tribunal, regarding both the SEEK advertisement placed by the applicant and those posted by All Manufacturing Personnel Pty Ltd, it appears that the position was advertised for a period of at least 4 weeks which supports a conclusion that the applications were accepted for that period.
The Tribunal therefore finds that the nomination was accompanied by evidence of labour market testing and the requirements of ss 140GBA(3)(b)(i) and (6A) were met.
On the additional material provided on review, the labour market testing requirements in s 140GBA were met and the Tribunal will now consider the remaining requirements for approval of the nomination.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal finds, on the information before it, that:
·The applicant is nominating the occupation of Metal Machinist (First Grade) under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa and meets reg 2.73(1);
·The nomination was made using the approved form and fee as required by regs 2.73(3), (4) and (5);
·The nomination was accompanied by payment of the nomination training contribution charge: reg 2.73(5A);
·The nomination is in the Short-term stream: reg 2.73(6);
·The applicant has identified the nominee, Mr Contreras Cabrera, in the nomination: reg 2.73(8).
The nomination included the name of the occupation and the corresponding 6-digit code, the location/s at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination, so reg 2.73(9) is met.
In response to the question on the nomination form regarding whether the person has engaged in conduct that contravenes s 245AR(1) of the Act, the response given was ‘No’. This is accepted as meeting the requirement that the nomination includes written certification as required by reg 2.73(12).
In response to the question on the nomination form regarding whether the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, the response given was ‘Yes’. This is accepted as meeting the requirement that the nomination includes written certification regarding this matter, noting that the occupation of Metal Machinist (First Grade) is not exempt: reg 2.73(13).
An affirmative answer was also given in response to the following questions on the nomination form: whether the tasks of the position include a significant majority of the tasks specified for the occupation in the ANZSCO; whether the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO; and, unless the occupation is exempt, whether the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, whether the position is in the person’s or an associated entity’s business. This is accepted as meeting the requirement that the nomination includes written certification of these matters, noting that the occupation of Metal Machinist (First Grade) is not exempt: reg 2.73(14).
For these reasons, the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) 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.
The Tribunal is not aware of any adverse information known to Immigration about the applicant or a person associated with the applicant. For these reasons, the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The applicant was approved as a standard business sponsor on 28 February 2022 for a period of 5 years.
For these reasons, the requirements of reg 2.72(5) are met.
Payment of debt mentioned in s 140ZO
Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.
There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO.
For these reasons, the requirements of reg 2.72(5A) are met.
Requirements for existing Subclass 457 or Subclass 482 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 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 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);
·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant must have provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).
The nominee has not previously held a Subclass 457 or Subclass 482 visa. In these circumstances, the Tribunal finds that reg 2.72(6)(a), reg 2.72(7) and reg 2.72(14) do not apply.
Specified occupation
For the nomination to be approved, reg 2.72(8) requires that the nominated occupation, which in this case is Metal Machinist (First Grade), corresponds to an occupation specified by the Minister in an instrument in writing for reg 2.72(8). By reference to the relevant instrument (LIN 19/048 Compilation No. 2), the nominated occupation and its 6‑digit code of 323214 correspond to an occupation and 6‑digit code specified in the relevant instrument under the Medium and Long-term Strategic Skills List.
Given this, the Tribunal finds that the occupation applies to the nominee. Therefore, reg 2.72(8) is met.
Position is genuine
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal accepts that the business activity of the organisation is as described by Mr Carrion having regard to the publicly available information on the website as well as information provided by the applicant including the current organisation chart, which outlines areas of activity and positions consistent with a manufacturing company.
The Tribunal has considered the financial report for the year ending 30 June 2021 produced by an external Accountant which indicates that the turnover for the company was over $4 million. The applicant also provided a profit and loss report for the period July 2022 to March 2023 which appears to be an internal report which reflects sales of over $4.6 million. The evidence of the applicant’s business activity of precision engineering and manufacturing, in the Tribunal’s view, is consistent with the claim of requiring a CNC Machinist/Operator. The evidence presented is that Mr Contreras Cabrera began working for them on a part-time basis since 2014 and has demonstrated skills and further developed the necessary skills for the position. Mr Carrion also explained the difficulties in sourcing suitably qualified and experienced people locally and referred to the difference in skill level of graduates from the schools in Peru. He added that he was unable to operate 2 shifts per day because of a lack of qualified staff. While there did seem to be 11 responses to the applicant’s job advertisement according to the summary obtained from the SEEK website provided after the hearing, the comments from the recruitment agency was that it reflects ‘a massive skills shortage [that] Australian Manufacturing industry is and has been experiencing for the past 20 years’. The Tribunal has formed the view that the evidence supports a conclusion that the position is genuine and full-time being consistent with the size and business activities of the applicant.
For these reasons, the Tribunal finds that the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument LIN 19/212. Where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor, and reg 2.72(11) must be met.
The nominated occupation is not specified in the relevant instrument. The information before the Tribunal indicates that the nominee will be engaged as an employee under a written contract of employment by the applicant directly. The Tribunal was provided with a copy of the contract on behalf of the applicant and signed by the nominee on 2 November 2022, which reflects that the applicant is the direct employer. The contract is effective 4 years from the date the Subclass 482 visa is approved and sets out the annual salary of $69,160 plus superannuation.

For these reasons, the requirements of reg 2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033.
Regulation 2.57A provides for the meaning of ‘earnings’. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met. Where reg 2.72(15) applies, it requires that:
·the ‘annual market salary rate’ (the ‘rate’) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location. Regulation 2.57A provides for the meaning of ‘earnings’: reg 1.03;
·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), which is $53,900, unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a);
·the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);
·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and
·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).
According to IMMI 18/033, the rate for an equivalent nominated occupation or an occupation in relation to which a position is nominated under reg 2.72(17) of the Regulations is the annual earnings of an Australian worker contained in those instruments. The contract made between the applicant and nominee does not refer to the specific instrument, but having regard to subsequently provided information, it is the Manufacturing and Associated Industries and Occupations Award 2020 which applies. In these circumstances where there is a Fair Work instrument, State industrial instrument or transitional instrument applicable to a nominated occupation, the rate for a nominated occupation or an occupation in relation to which a position is nominated under reg 5.19 of the Regulations is the annual earnings of an Australian worker contained in those instruments.
On the application form, it was claimed that the applicant had an Australian employee doing the same work as the nominated person. The payment arrangement was entered as an Award, specifically the Manufacturing and Associated Industries (Manufacturing Award) with the classification of C(2)(b). According to the current Manufacturing Award effective 1 May 2023, the minimum weekly rate for this classification is $1,272.50 which is an annual salary of $66,170. There may also be additional allowances that apply but none were highlighted by the applicant. On the basis of the information provided, the Tribunal finds that the rate for the position of Metal Machinist (First Grade) was determined by reference to the annual earnings of an Australian worker contained in the Manufacturing Award which means that the requirements of reg 2.72(15)(c) are met.
As the rate of $66,170 for the nominated occupation of Metal Machinist (First Grade) is more than the TSMIT of $53,900, the requirements of reg 2.72(15)(d) are met.
The nominee’s annual earnings will be $69,160, which means it will not be less than the rate for the occupation so the requirements of reg 2.72(15)(e) are met.
Given the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the TSMIT, the requirements of reg 2.72(15)(f) are met.
There does not appear to be any current information before the Tribunal that indicates the rate is inconsistent with Australian labour market conditions relevant to the occupation and the requirements of reg 2.72(15)(g) are therefore met.
Employment conditions
Regulation 2.72(18)(a) requires that there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information. In addition, if the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b).
The Tribunal is not aware of any information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location. The employment contract reflects terms and conditions that appear consistent with the Manufacturing Award and the Fair Work Act 2009 (Cth) and other applicable legislation. This means that the requirements of reg 2.72(18)(a) are met.
There is no evidence before the Tribunal that the applicant has engaged in any discriminatory recruitment practices, which means that the requirements of reg 2.72(18)(b) are also met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). The latter currently prescribes the amount of charges applicable for Subclass 457 and 482 visas as: if the annual turnover for the nomination is less than $10 million – $1,200 per year; if the annual turnover for the nomination is equal to or more than $10 million – $1,800 per year; if the nomination is in the Labour Agreement stream and the nominated occupation is a Minister of religion or religious assistant – nil charge. Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The application was made on 21 August 2019 which means that the applicant is liable to pay the charge.
The information before the Tribunal reflects that the applicant paid the training contribution charge of $4,800, which is $1,200 for 4 years. Noting that the position is for up to 4 years, the requirements of s 140GB(2)(aa) are therefore met.
Conclusion
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.
Wan Shum
Member

[2023] AATA 1528

19 May 2023

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