Signature Tastes Pty Ltd (Migration)

[2021] AATA 5557

Signature Tastes Pty Ltd (Migration) [2021] AATA 5557 (11 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Signature Tastes Pty Ltd

CASE NUMBER:  1825325

HOME AFFAIRS REFERENCE(S):          BCC2018/2189352

MEMBER:Ian Berry

DATE:11 November 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 11 November 2021 at 11:43am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Pastry Cook – genuine position – Labour Market Testing – no response to section 359(2) invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363A

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 August 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).

2. The applicant applied for approval on 21 May 2018. A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and r.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.

   Delegates decision

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s.2.72(10)(a) because initially insufficient information was provided in respect of the following:

   ·Submitting the alignment of tasks with the nominated occupation described in ANZSCO;

   ·As to how the nominated position is consistent with the applicant’s business; and

   ·Whether the primary purpose of the nominated position is to facilitate entry or stay of a nominee in Australia rather than to facilitate a vacancy or skill shortage.

4. The Department’s letter dated 10 July 2018, requested information from the applicant as to the following matters:

   ·A statement explaining the core activities of the applicant’s business along with supporting evidence of the business activities;

   ·A detailed organisation chart showing how the nominated position fits into the staffing structure of the business and including the full names of employees, position is held, hours worked, and details of any visa held;

   ·A statement and evidence (if available) demonstrating that the position is consistent with the nature of the business and explaining how it fits within the activities of the business taking into account the scale the business activities relevant to the position, and the responsibilities of existing employees;

   ·A description and photographs of the setting in which the tasks will be performed;

   ·To provide information and evidence (independently and verifiable where possible) of business developments that led to the creation of the position such as:

   ·Financial documents to support any claims relating to the growth of the business;

   ·Use of or increase in overtime work or other current employees performing the tasks of the position; and copies of business expansion or diversification plans and any associated market research completed by the applicant’s business including copies of new contract secured by the business.  

   ·Information about how many candidates were interviewed and why they were not suitable in respect of the nominated position.

5. The applicant was represented in relation to the review by Miss K Smith MARN 1384452 (from 30 August 2018 to 12 September 2021).

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 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. In addition, the labour market testing requirements in s.140GBA must be met.

   Position must be genuine and full-time

8. 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, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

9. The applicant did not respond to the Department’s letter dated 10 July 2018.

10. On the Department’s file the following documents were provided by the applicant to the Department:

    a.Tax invoice from Seek issued 23 April 2018 concerning the placement of an advertisement on 23 April 2018;

    b.Evidence of the job duties of the nominee;

    c.Job tasks of the nominee listed for the pastry cook position, but undated;

    d.Seek advertisement dated 23 April 2018, advertising the position of pastry cook with a salary range of $60,000 to $64,999;

    e.Example of an advertisement for a pastry chef in Seek dated 2 April 2018;

    f.Example of a position of pastry chef dated 18 May 2018;

    g.A job advertisement for the position of pastry chef at the applicant’s business;

    h.Letter of offer of employment from the applicant to the nominee dated 17 May 2018;

    i.Employment contract terms and conditions dated 17 May 2018.

11. The application for the nominated position was made on 21 May 2018. The advertisement by the applicant was only two months beforehand without any evidence as to who applied, their qualifications and work experience.

12. The application referred to evidence of the applicant in determining the market salary rate. It advised that it was by job advertisement and stated ‘the employer has used advertisements for similar roles within the industry to ascertain the salary for an employee with the same skills and experience as the Nominee’

13. The applicant stated that it did undertake labour market testing and provided the statement of the labour market testing commencing on 23 May 2018 and went from 21 days to 3 months. There is no evidence on either the Departmental or Tribunal files demonstrating advertisements over that period of time.

    Labour Market Testing

14. 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 s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

15. 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 IMMI 18/059. In addition:

    ·the nomination must be accompanied by the evidence specified in s.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.

16. 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 of 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.

17. The applicant did not provide enough information to ascertain as to whether it had complied with its obligation to undertake and complete labour market testing. That information is referred to in paragraph 9.

    Invitation to provide information under s.359(2)

18. On 5 August 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about information about the applicant and its registration numbers, information about the current approval as a standard business sponsor; information about directly operating an active and lawful business in Australia and its financial position for at least two financial years; information about the businesses organisational structure and whether the nominee’s position sits within that structure; information of the roles and duties of the nominated occupation and how they correspond to the nominated occupation’s position description in ANZSCO; the nominated occupation has set are any inapplicability conditions or kbits; information about the annual market salary rate and matters associated with it and information about the current and previous Visa status of the nominee. The applicant was advised it must provide the information by 19 August 2021 and if the applicant requires an extension to notify the Tribunal on or before 19 August 2021.

19. By correspondence from the applicant’s migration representative an extension to provide the information was requested and granted for the applicant to respond on or before 16 September 2021.

20. The Tribunal’s letter of 5 August 2021 advised the applicant that the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.  The applicant has not provided the comments within the prescribed period. Though, the Tribunal notes the applicant’s migration  representative advised that the ownership of the applicant changed hands. A copy of the ASIC search evidencing that change was provided but no information was provided in relation to the request for information. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit it to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

21. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to approve the nomination.

    Ian Berry
    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)…