SIESTA SYDNEY PTY (Migration)

SIESTA SYDNEY PTY (Migration) [2022] AATA 4472 (7 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SIESTA SYDNEY PTY LTD
REPRESENTATIVE:  Mr Albert Kalouche (MARN: 0101940)
CASE NUMBER:  1915325
HOME AFFAIRS REFERENCE(S):          BCC2019/2677826
MEMBER:Alan McMurran
DATE:7 October 2022
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 October 2022 at 4:42pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Interior Designer – labour market testing – LIN18/036 – genuine attempt to recruit Australian citizens or permanent residents – advertisement for the position – 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

This is an application lodged on 14 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 3 June 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Siesta Sydney Pty Ltd, is an Australian registered Corporation and carrying on a business for hotel services in Sydney’s CBD. It also purports to be part of the Romanous Group of companies owned and operated by the Romanous family throughout Australia, and which entities are involved in construction and development of hotels and hospital accommodation.
The applicant applied for approval on 23 May 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three 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. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The nominee, Gaelle Boustany, is a 30-year-old citizen of Lebanon and has been nominated for the occupation of Interior Designer (ANZSCO 232511). The nominee has lodged a related application for review of the refusal of a Temporary Skill Shortage Visa Subclass 482[1].
[1] Tribunal case 1922701
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s.140GBA(3)(d)(i) because the delegate found the applicant had not made a ‘genuine attempt’ to recruit or find an Australian citizen or permanent resident suitable for the nominated occupation. The relevant provision of the Act concerns satisfying the labour market testing condition for the nomination, as required by legislative instrument.
The applicant appeared before the Tribunal on 7 October 2022 in a combined hearing with the application by the nominee. The Tribunal received oral evidence from the applicant’s authorised officer, Mr Allen Romanous, Chief Operating Officer (“the COO”), and from the nominee. The hearing was conducted by video in accordance with the Tribunal’s Practice Direction, determined by the Tribunal to be the means of achieving its statutory objective to conduct a hearing which is fair, just, economical, informal, and quick[2]. No objection was taken to the form of the hearing and the applicants indicated they were ready to proceed, having made written submissions beforehand.
[2] Administrative Appeals Tribunal Act 1975, s.2A
Both the applicant and the nominee were represented in relation to the review by the same migration agent, Mr Kalouche, who appeared for the hearing and made submissions. The Tribunal explained to the nominee that the outcome of her visa application was dependent upon the decision in relation to the nomination, and in the event, subject to further Department consideration of any remaining criteria.
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. All criteria must be met for the application to succeed.
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.
The Tribunal has available a large amount of information including extracts from the Department’s nomination and visa application files, the related Tribunal files including recent submissions from the representative, and oral evidence from the hearing. This includes material which was not before the Department. The Tribunal has also had regard to the Act and the Regulations, relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and information publicly available from the Internet.
The Tribunal has also placed significant weight on the oral evidence obtained from a hearing and which was not available to the Department delegate.
Background
According to the internet description, the applicant is in the business of providing budget hotel-style accommodation at an address at Kent Street in Sydney, New South Wales, and where its principal office is located. The company has been trading since February 2013. The COO described the group operations, which includes the applicant, as designing, developing, constructing, and managing large commercial projects. The group is a family run business which commenced more than 25 years ago, and involves the applicant, Siesta Sydney Pty Ltd, Romanous Constructions Pty Ltd and Romanous Developments Pty Ltd, as the 3 related entities involved (“the group”). The relationship in the group derives from family members as directors and officers of the entities.
The applicant has submitted for the Tribunal on 15 July 2022, financial statements for the periods ending June 2020 and June 2021, together with current Business Activity Statements and recent tax returns. Income for the applicant business declared for the 2021 financial year totalled $325,576 and after expenses, yielded a modest profit of $4,380. By comparison, for the 2020 financial year, income was recorded at $738,970 and after expenses, a modest profit of $6,906. The 2021 financial year includes the salary of the nominee, currently at $85,000 per annum plus GST. The COO submitted that the overall turnover for the group, which included construction and development projects, was annually between $5 million and $10 million, primarily comprising lease revenue. Financials for the group were not produced, just those for the applicant.
The applicant has provided the Tribunal on 30 September 2022 a detailed chronology, which is not repeated here. The nominee is engaged by the applicant under a written contract of employment (referred to below) in a full-time role as an Interior Designer, since June 2021. That contract sets out the employee’s duties and responsibilities to include coordinating with different consultants and architects “on the company’s projects”. It refers to preparation of design concepts, selection of functional and aesthetic furniture, project management for interior design and negotiating with suppliers and construction staff. It refers to project management “through the NSW portal” and for the “Macksville Project” and upcoming “projects in NSW and Queensland”. It also refers to “plans and specs book of Reunion Gyms”. Details concerning the stated projects and the applicant’s role in those projects have not been submitted.
The application states the applicant employs a total of 8 employees, including 2 foreign employees, all in New South Wales. The evidence is that the group is currently seeking to employ a larger workforce for its current construction and development projects, and which projects have been in progress since 2019. Those projects have been subject to interruption following lockdowns and commercial stress following the pandemic, and which has affected timing for the commencement and completion of new work and recruitment for the group.
Other than the stated issue by the delegate that the labour market testing requirements were not met, the Tribunal has had regard to all the criteria necessary for the application to succeed. The Tribunal has provided its findings in that regard as set out below.
The hearing
Both the COO and the nominee gave evidence.
The COO is an Australian citizen and officer of the applicant and is employed within the family group of companies. He was authorised to provide evidence and information on behalf of the applicant. He explained the operational background for the applicant in conjunction with the related construction and development entities. He said a development application has been approved for the applicant’s Sydney site and remains current. The application is to develop a commercial hotel with 17 floors and at an estimated cost of around $116 million. The project has not yet commenced, and the witness explained that although finance is approved and available for the development, a shortage of construction staff for commencement of works is delaying the project. He said this is common for most construction projects in the current commercial environment, and where employing and engaging suitable staff is at a premium.
He was asked about the background to the employment of the nominee. He said that in 2019 during the proposal stage for the Sydney development, and other projects, the applicant identified the need for an interior designer. He said he did his own research on the availability of interior designers generally and salaries being paid, including the award rate which he thought on recollection was approximately $18 per hour. He said he reviewed advertisements for similar positions on the website, seek.com, and referred also to previous advertisements run by the applicant on the Internet. He prepared the advertisement himself, which was lodged on the website, indeed.com on 20 April 2019, and on seek.com from 24 April 2019 and which advertisements ran until 23 May 2019. Evidence of the advertisements has been produced from the website operator.
The applicant was asked why the nominee had received an employment agreement dated 3 May 2019. The Tribunal noted this was a period before the advertising had ceased. The COO said the “agreement” was in fact a letter of offer only and not intended to be a formal employment agreement at that time. He also said it was wrongly dated and should have been dated 23 May 2019, when it was actually issued. He said he was aware that the nominee had no work rights at that time, being on a visitor visa, and after discussing the issue, determined that the applicant would seek sponsorship by way of nomination. The nomination application was lodged on 23 May 2019 in an endeavour to recruit the nominee in due course and retain her services. The applicant said he retained a migration agent to assist in the process, who also represented the nominee in her visa application which was lodged on 25 May 2019. The COO said his understanding was that the nominee was unable to work until her visa was approved, and which caveat was included in the letter of offer.
He explained that the position for the interior designer was an ancillary position within the business, meaning it was not imperative that she start work immediately, and that the nominee’s start date could be deferred in line with the timing for project construction and development. He said as it turned out, the nominee did not obtain work rights until she obtained assistance from the current representative and she applied for a bridging visa with work rights, and which the nominee said was granted in July 2020. At that time, because of the pandemic lockdown, the nominee was unable to commence full-time employment with the applicant, although she did some part-time work up until June 2021 when she commenced full-time employment on a revised employment contract. The COO stated that the latest employment contract dated 4 June 2021 provides for a salary of $85,000 per annum plus superannuation and is a significant increase on the original letter of offer from 2019 and contains the relevant conditions to which the Subclass 482 visa employment would be subject. He said the applicant was keen to retain the services of the nominee, as the position was difficult to fill from the available applicants, and she is needed for completion of the projects undertaken by the group and for at least the next two years following the grant of a visa.
The witness was asked about the employment terms and conditions for the nominee. He explained that he understood following his enquiries as to any relevant award that the minimum hourly rate was approximately $18, and that the current salary on offer significantly exceeds the award minimum. He also said that having compared salaries on offer for similar positions from the government website, he submitted the salary and conditions were well within what might be expected for a person performing the same work in the same workplace and for the same occupation.
The COO was asked why no Australian citizens or permanent resident was suitable for the role. He was asked about the responses to the advertisements received by the company in May 2019. He said he was responsible for the recruitment. He said he edited from 40 responses a shortlist of approximately 13 applicants, some of whom he telephoned. He said largely the applicants had difficulties either with their experience, no experience at all, language difficulties, or unsuitability due to lack of training. A copy of the summary provided by the applicant for each of the unsuccessful responders has been submitted with the information to the Tribunal.
He said that the nominee was initially interviewed by telephone, and then taken on a three day trip to one of the group’s related projects at Bundaberg in Queensland, where the nominee was interviewed by the chief architect for the project. He said the three day interview process was a test of her capabilities, and following which, he was satisfied she was appropriate for the position. He again reiterated that there had been no successful applications by Australian citizens or permanent residents, that he had no prior connection with the nominee, and that she was selected on merit. He said she is now working full-time in the role and working with project architects and construction managers on interior design work for several projects in the group. He said there is the Sydney hotel development site, and also a second location in Sydney where hospital accommodation is being developed. The nominee is engaged to plan, detail and supervise the building interiors for those projects, and which the COO anticipates will include the nominee over at least the next two years.
The nominee also gave evidence. She was asked why she came to Australia and responded that she had intended to visit her aunt (her mother’s sister) in Sydney together with some friends who were already living there. She arrived on a visitor visa in about early March 2019, travelled around a bit, and thought she might like to stay and work. She made enquiries and was introduced to the COO. She provided him with her resume and said that she received a telephone response and then subsequent interview, followed by a 3 day trip to Bundaberg to observe her work on a trial basis. She said she received a letter of offer in late May 2019. She was told the company would agree to nominate her for the role and make the appropriate application to the Department. The next she heard was that the nomination application had been refused a very short time later on 3 June 2019, and that subsequent to that her visa application was also refused on 30 July 219. The applicant said it would review the decision in the Tribunal, which is the current proceedings, and that the letter of offer would remain open in the interim pending the outcome of the review. The applicant also sought review of her visa refusal.
The nominee explained that she had lived on her savings with some support from her father in the period from June 2019 until June 2020, while awaiting the review process and being caught in the pandemic lockdown with the borders closed. She had obtained the assistance of a migration agent who helped her obtain a bridging visa with work rights and following which she was able to obtain some part-time work with the applicant from July 2020. After the lockdown ceased, the nominee was able take up full-time employment with the applicant from June 2021. She signed an employment agreement at that time which reflected an increase on the salary originally offered in 2019, and to reflect current market conditions. She said that she had not received any independent advice about her employment but relied upon the assistance of the migration agent and what she had been told by the COO for the applicant.
On the conclusion of the hearing, both witnesses had nothing further to add and relied upon the submissions already made. The COO submitted that the advertisement for the position was “genuine” and there had been no pre-determination to engage the nominee , irrespective of the advertising and responses. He submitted that the nominee was selected on merit and experience and had proved to be “far better” than the other applicants in terms of her subsequent performance and that in hindsight, the applicant had made exactly the right decision to recruit her.
The representative submitted that the Tribunal should have regard to the applicant’s information submitted to the Department, including the description of the position details and outline of the work being performed by the nominee and to which both the COO and the nominee had referred in their evidence, as tasks aligned with the occupation. It was submitted the Tribunal should accept that information and submission that the position had been properly advertised and that the applicant meets the requirements for approval of the nomination.
Having considered the evidence and the available information, together with the written submissions from the applicant, the Tribunal finds as follows.
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.
On the available information, the Tribunal is satisfied the applicant is nominating an occupation and the corresponding 6 digit code under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Short-Term stream[3]. The nominee is nominated to work in the nominated occupation.
[3] LIN19/048 commenced 11 March 2019; for nominated occupations on 11 March 2019, this includes Interior Designer (ANZSCO 232511);
The Tribunal is satisfied from the Departmental information that the application was made on the approved form, and the fee paid together with the nomination training contribution charge applicable and collected from the applicant at the time of lodgement.
The nomination includes the proposed period of stay for a visa granted on the basis of the nomination, and the applicant’s annual turnover as calculated for each of the financial years 2021 and 2022 and as submitted with its annual taxation returns for each of those years. The location for the performance of the work is said to be initially at the applicant’s address at Kent Street in Sydney, and “in the course of employment, the Employee’s place of employment may change”.

The Tribunal finds that the application identifies the applicant as a standard business sponsor for the 5-year period from 10 November 2021 to 10 November 2026 and includes the following certifications:
·     the relevant 6-digit occupation code, Interior Designer (ANZSCO 232511), with the name of the occupation, identifying the nominee in the nomination.
·     the principal location in the Sydney CBD, where the occupation is carried out.
·     the applicant’s turnover for each of the FYE 2020 and 2021.
·     the applicant has not engaged in conduct that contravenes s 245AR (1) of the Act relating to paying for visa sponsorship or a sponsorship-related event.
·     the nominee’s employment contract dated 4 June 2021, complies with Commonwealth, State, or Territory employment laws.
·     the nominator’s certification states the tasks of the nominated occupation include a significant majority of the tasks specified for the occupation of Interior Designer (ANZSCO 232511), and the qualifications and experience of the nominee are commensurate with those specified for the occupation in accordance with the relevant instrument [4].
·     the position nominated is in the applicant’s hotel and commercial accommodation business, or an associated entity’s business, and which is the principal business conducted by the applicant.
[4] IMMI 18/048
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.
At the time of decision, the Tribunal finds there is no adverse information known to Immigration or the Tribunal, 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 has submitted evidence of an approved sponsorship for 5 years and current for the period 10 November 2021 to 10 November 2026.
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 of the Act, and which has not been paid in full.
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 has 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).
As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.
Specified occupation
Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN19/048. The occupation must also apply to the nominee in accordance with the instrument.
The applicant has specified the nominated occupation of Interior Designer and the relevant 6-digit ANZSCO code, which corresponds to an occupation in the relevant compilation instrument LIN 19/048.
There are no applicability conditions for the occupation as nominated in the relevant instrument.
For these reasons the requirements of reg 2.72(8) are met.
Position must be genuine and full-time
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 has had regard to the evidence at the hearing as summarised above. The Tribunal has also considered the current employment agreement signed by the parties and which specifies the location and other terms and conditions of the employment..
The ANZSCO guide provides that “Interior Designers plan, design, detail and supervise the construction of commercial, industrial, retail and residential building interiors to produce an environment tailored to a purpose, with particular emphasis on space creation, space planning, and factors that enhance living and working environments.” Both the COO and the nominee gave a description of their work and the role.
The COO described the current and ongoing projects being undertaken by the applicant, explaining that the timing of those projects and construction and development has been significantly hampered due to the disruption caused by the pandemic, and an inadequate supply for the applicant’s workforce and that of the group. He explained that the nominee may work on all of the applicant and the group’s projects from time to time, as she is the only employed interior designer. Regardless of the timing for actual construction and development, which will depend upon active recruitment for the group and in respect of each project, the nominee’s services will be fully utilised on one or all of those projects as required, including the applicant’s Sydney hotel project.
The Tribunal has listened carefully to the work as described by the COO and the nominee for the role. The Tribunal is satisfied on that evidence that the employment and the position is full-time. The Tribunal is further satisfied the position is genuinely that of an interior designer, as nominated.
For these reasons 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 relevant instrument. In the former case, 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 Tribunal finds on the available information that the nominee will be engaged as an employee under a written contract of employment by the applicant or an associated entity. The applicant has provided a signed copy of the current employment agreement made 4 June 2021.
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 IMMI18/033. Regulation 2.57A provides for the meaning of ‘earnings’. 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 IMMI18/033: reg 2.72(15)(c). The ‘annual market salary 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: 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 IMMI18/033 (TSMIT), 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).
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.
There is no Award coverage for employed interior designers working in the hotel construction and project management business. Such employees are otherwise covered by the National Employment Standards (Cth), unless:
- their employer is in an industry covered by an award
- their duties match the classifications in the award.
There is no information submitted or available to the Tribunal to suggest that the project management and construction industry covers interior designers with an applicable Award. The relevant instrument[5] therefore sets out the method for determining the annual market salary rate where there is no Award coverage and no Australian worker in the applicant’s business performing equivalent work, other than the nominee, and against whom some comparison may be made.
[5] IMMI 18/033
Where there is no fair work instrument, State industrial instrument or transitional instrument applicable to a nominated occupation, the ‘annual market salary rate’ is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to ‘relevant information’.
The phrase ‘relevant information’ is defined to include information published on an Australian government website such as Job Outlook, job advertisements from a national recruitment website or national print media in English, where salary arrangements are specified in the advertised position, written advice from a registered employer Association, and remuneration surveys across the relevant industry by a reputable organisational body.
Currently available information from the Internet[6] shows the average wage for an interior designer in the position of the nominee would be approximately $1,586 per week or $82,472 per annum plus superannuation.[7]
[6] Interior Designers | Labour Market Insights
[7]
The applicant has submitted evidence of an updated employment contract dated 4 June 2021 for the nominee, with a base pay of $85,000 per annum plus superannuation. The Tribunal finds it is satisfied that the annual market salary rate for the nominated occupation has been determined by the applicant in accordance with the relevant instrument.
For these reasons the requirements of reg 2.72(15)(c) are met.
The Tribunal further finds that the rate for the occupation is not less than the TSMIT threshold of $53,900 specified in IMMI 18/033.
For these reasons the requirements of reg 2.72(15)(d) are met.
For the reasons given above and relying upon the provided industry and occupation evidence for the role of interior designer, the Tribunal is satisfied that the requirements in the legislative instrument,18/033, as to the method of determination of the annual market salary rate have been followed.
For these reasons the requirements of reg 2.72(15)(e) are met.
The Tribunal has found that the nominee’s earnings for the position in relation to the nominated occupation are not less than the TSMIT minimum of $53,900 as specified.
For these reasons the requirements of reg 2.72(15)(f) are met.
There is no information before the Tribunal to indicate that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the occupation. The evidence submitted of comparable positions advertised, shows the nominee is paid an average salary at the time of decision, or slightly above, the rate commensurate with what 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.
For these reasons the requirements of reg 2.72(15)(g) are 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.
The Tribunal finds on the available information that there is no Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal finds that the nominee’s employment conditions reflect those currently in operation in the Australian marketplace for the nominated occupation and are no less favourable than those for Australian citizens or permanent residents performing equivalent work at the same location.
For these reasons the requirements of reg 2.72(18)(a) are met.
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). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
The phrase “discriminatory recruitment practices” is not a defined term. The Tribunal finds there is no evidence before it that the applicant has engaged in any discriminatory recruitment practices. To the contrary, the applicant has relied upon industry standards and researched information available publicly. The applicant has referred to evidence of regular advertising on an ongoing basis to try and recruit staff. The current labour market in Australia is extremely tight and finding suitable staff for the applicant has proved to be difficult. The evidence which the Tribunal accepts is that the applicant is endeavouring to significantly increase its labour force to enable it to complete its anticipated projects and in the evidence from the COO, “desperate” to retain its current employees including the nominee.
The available information submitted reveals entirely orthodox and appropriate language used and non-discriminatory advertising for recruitment of the nominee, where the only requirements sought reflect qualifications, experience, and expertise.
The Tribunal accepts the evidence from the witnesses and the written submissions and finds it is satisfied the requirements of reg 2.72(18)(b) are met.
Labour Market Testing
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 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 instrument IMMI18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four 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.
The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN18/036.
The Tribunal finds that the LMT condition applies to the applicant and that there is no specified international trade obligation specified in the relevant instrument IMMI17/109 which would render the condition exempt[8]; or any major disaster exemption or skill and occupational exemptions applicable in the relevant instrument IMMI18/058, which specifies there are no occupation-based exclusions from the LMT condition.
[8] See discussion on specified international trade obligations in Liby Holdings Pty Limited BCC2019/3013240 per DP Redfern and applicability of relevant trade agreements where identified, in the context of an Australian China Free Trade Agreement, and related exemption application.
The Tribunal has had regard to the available information and the advertising in this instance and the evidence about the advertising undertaken for the position. The evidence submitted discloses that advertising took place in May 2019 for the nominated position of interior designer using two Internet recruitment websites, Indeed, and Seek. The advertising occurred in the period from 20 April 2019 until 22 May 2019. Both advertisements were open for at least 4 weeks and were posted within the period of 4 months ending on the date on which the nomination application was lodged. In those periods, the evidence discloses the details of 13 candidates respectively, from approximately 40 applicants in total who responded to those advertisements. The evidence lists each short-listed candidate, and the applicant’s responses to each of those candidates. The details for those unsuccessful candidates are set out in the written submission produced for the Tribunal’s consideration. The majority of unsuccessful candidates were rejected for reason that they did not have relevant or related industry experience, or language skills for the role, and at the level required by the applicant.
Having examined that information carefully, the Tribunal finds it is satisfied that the labour market testing was undertaken in accordance with the requirements of the relevant instrument and in the specified four month period prior to lodgement of the application. The nomination application has been accompanied by the advertising evidence, which did not include any recent retrenchments or redundancies.

The evidence discloses to the Tribunal’s satisfaction that there was no suitable qualified and experienced Australian citizen, permanent resident, or eligible temporary visa holder available to fill the nominated position.
For these reasons, the labour market testing requirements in s 140GBA are 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). 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)].
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 Tribunal finds that the applicant is liable to pay the charge.
The Tribunal notes that the required training contribution charge was collected and receipted by the Department with the application fee on lodgment, and which notification of payment was provided by the Department to the applicant at that time.
For these reasons the requirements of s 140GB(2)(aa) are 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.
Alan McMurran
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)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.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one 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.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       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 an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2022] AATA 4472

7 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Natural Justice