Skyhooks Solutions Pty Ltd (Migration)

Skyhooks Solutions Pty Ltd (Migration) [2021] AATA 1382 (4 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Skyhooks Solutions Pty Ltd
CASE NUMBER:  1818539
HOME AFFAIRS REFERENCE(S):          BCC2017/3831523
MEMBER:Alison Mercer
DATE:4 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 4 May 2021 at 11:15am

CATCHWORDS
MIGRATION – application for approval of nomination of position – terms and conditions no less favourable than for citizen or permanent resident – updated and current information provided to tribunal – employment agreement, salary rates and relevant award – genuine occupation and position – labour market testing – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), rr 2.72(10)(c), (f), 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 5 June 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant, Skyhooks Solutions Pty Ltd, applied for approval on 18 October 2017 for the nominated position of Painting Trades Worker. A nomination of an occupation for a subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(c) because the delegate found that the applicant had provided insufficient evidence that the terms and conditions of employment of the person identified in the nomination would be no less favourable than the terms and conditions that were provided, or would be provided, to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location. As a result, the delegate found that r.2.72 was not met as a whole, and the applicant’s nomination could not be approved.
The Tribunal received a review application from the applicant on 26 June 2018. It was lodged on behalf of the applicant by its director, Mr Anthony Harrington, and was accompanied by a copy of the delegate’s decision, and an authority by which Mr Harrington appointed a registered migration agent, Ms Elena Krasnova, as the applicant’s representative and authorised recipient for correspondence.
On 20 November 2020, the Tribunal wrote to Mr Harrington via the agent, pursuant to s.359(2) of the Act, to invite him to provide updated and current information demonstrating how the applicant met all of the criteria in r.2.72 (not just the criterion that the delegate found was not met). The Tribunal provided examples of the kind of information that would assist it to assess the applicant against the r.2.72 criteria and requested the information be provided by 4 December 2020. The Tribunal noted that if the information was not received (or a request made for an extension of time to do so) by the due date, then the applicant would lose its right to have a Tribunal hearing, and the Tribunal might proceed make its decision on the available evidence.
On 4 December 2020, Mr Harrington sought an extension of the time to provide the requested information, and this was granted to 7 January 2021. In its letter granting the extension, the Tribunal reiterated that if the information was not received (or a request made for an extension of time to do so) by the new due date, then the applicant would lose its right to have a Tribunal hearing, and the Tribunal might proceed make its decision on the available evidence. The Tribunal noted that even if applicant could not provide all of the requested information by 7 January 2021, it should provide as much as it could by that date, to avoid losing its hearing entitlement.
On 7 January 2021, the Tribunal received the following information:
·evidence of Australian Securities and Investments Commission (ASIC) and Australian Business Number (ABN) registration of the applicant and ASIC historical extract;
·Department approval of the applicant as a Standard Business Sponsor (SBS) dated 8 May 2018;
·profit and loss statement for the applicant for 2019/2020;
·list of the applicant’s employees; and
·request for further time to provide additional information.
On 21 January 2021 and 1 February 2021, the Tribunal received the following additional information:
·submissions from the agent on the applicant’s business operations, its genuine need for the nominated position and its methodology for market rate salary calculations;
·statement from Mr Harrington dated 19 January 2021;
·Business Activity Statements (BAS) for financial years 2017/18, 2018/19 and 2019/2020;
·organisational chart;
·payslips for the nominee;
·employment agreement between the applicant and nominee, dated 20 January 2021, indicating that the nominee’s salary is $65,208 plus superannuation;
·salary rates information;
·evidence of advertising of the nominated position; and
·copy of Building and Construction General Onsite Award 2010.
In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied, from having reviewed the documents on the Department’s file, that:
·the applicant nominated an occupation under s.140GB(1)(b) (being Painting Trades Worker) and thus meets r.2.73(1A)(a);
·the applicant identified the nominee, Mr Adam Wardle, the proposed applicant for a subclass 457 visa, as the person who would work in that occupation, and thus meets r.2.73(1A)(b);
·the nomination was made using the approved form and fee, and thus meets r.2.73(2),(3), (5) and (9);
·the applicant identified the nominee, Mr Adam Wardle, in the nomination, thus meeting r.2.73(4)/(4A) and (5); and
·the nomination included the location at which the occupation would be carried out, and the 6 digit ANZSCO code for that occupation (ANZSCO code 332211), thus meeting r.2.72(4).
The Tribunal is therefore satisfied that the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
The applicant has provided information, which is confirmed by the Department’s records, that the applicant is an approved standard business sponsor. The approval ceases on 8 May 2023.
Accordingly, the Tribunal finds that the requirements of r.2.72(4) are met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
As noted above, the Tribunal is satisfied that the applicant identified the nominee Mr Adam Wardle as the proposed applicant for the visa, who will work in the nominated occupation, in its nomination application.
Accordingly, the Tribunal finds that the requirements of r.2.72(5) are met.
Requirements for existing subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a subclass 457 visa holder is identified as the person to work in the nominated position. In these cases:
·the applicant must list on the nomination each person granted a subclass 457 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: r.2.72(6)(a) and r.2.72(7);
·the subclass 457 visa holder must demonstrate that he or she has the skills necessary to perform the occupation in the manner specified if required to do so: r.2.72(6)(b);
·the applicant must provide a written undertaking if the existing subclass 457 visa was granted after the sponsor provided an undertaking relating to certain health requirements: r.2.72(7A); and
·if the subclass 457 visa holder met cl.457.223(6), he or she must either: continue to meet cl.457.223(6); or be an exempt applicant under cl.457.223(4); or have achieved in a single attempt a test score specified in the relevant written instrument in the specified time; or, in certain cases, have proficiency of at least the standard required in order to hold a mandatory licence, registration or membership to perform the nominated occupation: r.2.72(10)(g).
The Tribunal has reviewed the Department’s records and is satisfied that the applicant has never held a subclass 457 visa. As the nominee is not the holder of a subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant written instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal is satisfied that the applicant is an approved standard business sponsor, its nomination included the 6 digit ANZSCO code for the nominated occupation Painting Trades Worker (ANZSCO code 332211) and specified that the location at which the occupation was to be carried out was Yarraville in the state of Victoria, postcode 3013.
Accordingly, the Tribunal finds that the requirements of r.2.72(8A) are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.
The Tribunal is satisfied that this was certified in the nomination form submitted by the applicant to the Department.
For these reasons, it is satisfied that the requirements of r.2.72(8B) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
Having reviewed the Department’s file and its electronic records, the Tribunal finds that there is no evidence to indicate that there is anything adverse that is known to the Immigration (or the Tribunal) about the applicant or any person associated with it.
Accordingly, the Tribunal is satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal is satisfied that the nominated occupation of Painting Trades Worker is listed in IMMI 17/060, with code 332211, and is not subject to any occupational caveats listed in the instrument. Nor is there any requirement that the occupation be supported in writing to the Minister by a specified organisation.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(10)(aa) are met, and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
Based on the evidence before it, the Tribunal finds that the nominee’s proposed annual earnings consist of his base salary of $65,208 plus 9.5% superannuation as per the employment contract dated 18 January 2021. As this is not equal to or greater than $250,000, the applicant is not exempted from the above requirements. Therefore, the Tribunal must be satisfied that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
The Tribunal is satisfied from the organisational chart and employee list provided by the applicant in January 2021 that there are 34 full time employees, including the nominee. There are 8 other Abseil Technicians – Painting besides the nominee, of whom 6 are Australian citizens or permanent residents, and 2 of whom are temporary visa holders.
The nominee’s employment contract indicates that his terms and conditions are those contained in the contract, the Building and Construction General On-site Award 2010 and the National Employment Standards (NES) in the Fair Work Act 2009 (Cth). Also supplied to the Tribunal is an employment contract for 1 of the Australian Abseil Technicians – Painting, dated 14 February 2020, which contains the same salary and conditions as those in the nominee’s employment contract.
In her submission of 21 January 2021, the applicant’s agent notes that:
Skyhooks uses a number of methods to calculate market rates.
Firstly, they use the industry award to ensure everyone is paid above the award for their role. This is based on the “Building and Construction General Onsite Award,” which states Level 3 Painters are paid $938.11 per week, which is $48,781.72 per annum.
Secondly, they use comparative workers within the company to determine market rates.
Finally, in the absence of a comparative worker they would use market research (comparative job adverts and knowledge of going rates within the industry) to determine salary.
In the case of the original application, there were other workers doing the same role (painting) but none who were doing the equivalent work (at the same level of experience), so the salary offered to the [nominee] was based on the industry award, and market research, which was submitted with the original application (which was $55,328 + Super).
In the original application, we submitted adverts to show that the salary met local market rates, and it was over TSMIT, and we also submitted a blank contract, which at the time was a requirement to show that the terms and conditions were the same as for other employees.
We note that this evidence was not considered by the case officer due to an “incorrectly ticked box” in the application form suggesting the company had an equivalent worker.
Since the time the appeal was lodged the company has had another employee performing equivalent work, so they are basing [the nominee’s] salary on that of the equivalent employee. The equivalent employee would also have had the above methodology used to determine their salary.
So, the company is using the industry award, which the equivalent worker is paid more than, and using their contract and salary as the basis for that of the nominee, and that salary is now $65,208 + Super.
We also have payscale report which shows the average salary for the role in 2021 in Melbourne is $57,394, and up to date adverts from seek which show either a range of $55K+ to hourly rates, $30 per hour matching the annualised salary of $65,208.
We note that the original salary, and the new salary, are both consistent with market rates, industry awards, payscale reports etc…
Accordingly, having regard to all of the above evidence, the Tribunal is satisfied that the nominee's terms and conditions will be no less favourable than the terms and conditions that would apply to the equivalent Australian employee.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/028 (currently $53,900).
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.

Likewise, the requirement in r.2.72(10)(cc) does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028 (currently $250,000): r.2.72(10AB).
The Tribunal is satisfied from the evidence provided that the nominee’s annual earnings will be $53,900 plus superannuation. As this is not equal to or greater than $250,000, the applicant must satisfy r.2.72(10)(cc).
Based on the information set out in the previous section, the Tribunal is further satisfied that the nominee’s annual earnings exceed the TSMIT, and that the base rate of pay under the terms and conditions of employment that are provided to an Australian citizen or permanent resident will also be greater than the TSMIT.
Therefore, the Tribunal finds that the requirements of r.2.72(10)(cc) are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 17/060;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant written instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in IMMI 13/067; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 17/060.
From the material provided to the Department, the Tribunal is satisfied that the applicant certified the above matters.
Accordingly, it is satisfied that the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
In his statement of 19 January 2021, Mr Harrington notes that
Skyhooks Solutions Pty Ltd trading as Skyhooks High Access Solutions is an Australian company offering specialised industrial abseil services including, but not limited to:
·Building maintenance and restoration
·Leak prevention works
·High access window and façade cleaning
·Height safety system installations, testing and certification
The company currently consists of 30 employees.
We confirm [the nominee] has been employed on a full time basis as an industrial abseil technician from April 2017, more recently in his current position of Painting and Coating Trades Worker.
He has performed the following duties in his role:
·High pressure façade cleaning
·High access window cleaning
·Balcony restoration works
·Handle painting and decorating materials
·Use painting and decorating tools and equipment
·Remove and replace doors and door and window components
·Prepare surfaces for painting
·Apply paint by brush and roller
·Apply texture coat paint finishes by brush, roller and spray
·Apply paint by spray
·Match specified paint colour
·Apply stains and clear timber finishes
·Apply wallpaper
·Apply decorative paint finishes
·Remove graffiti and apply protective coatings
·Apply protective paint coating systems
·Apply lead paint and asbestos management
·Apply advanced wallpaper techniques
·Apply advanced decorative paint finishes
We have found [the nominee] to be reliable and honest. He fits well with any team that he is placed to work with, building comradery with his workmates. He is polite and always displays the attributes that we seek to portray to our clients and public alike.
Provided with Mr Harrington’s statement were extracts from the applicant’s website, which indicate that the company was established in 2008, is one of Melbourne’s leading specialist providers of high access services to the construction industry, and since 2018, has been an accredited training provider for rope access work, having established its own state of the art training centre.
In her submission of 21 January 2021, the applicant’s agent notes that:
… In terms of the breakdown of staff, 18 are Australians or PR holders, 6 are NZ citizens and 7 are WHV holders, 2 hold 482s and the applicant holds a BV. As such you can see that over half the company are Australians/PR, and while there’s 9 temporary visa holders, only one has been sponsored before (Stef Kujawa in a Marketing role). The company would argue that the reliance on WHV holders demonstrates the difficulty finding local staff, while the relative lack of 457/482 holders shows there is no evidence that the company is trying to use sponsorship to avoid employing Australians where possible.
Further to that, the company has diversified to add in a training section, which in theory will allow them to train more local staff, although as you can imagine, the ability to cope with heights is probably not something most of us have, regardless of painting skills or rope training!
The company has made numerous ongoing efforts to recruit for the role, both before the original nomination, since then, and in response to the case coming up at the AAT. We note that these ongoing efforts reflect the difficulty of finding people who have the mix of skills, both painting, rope access and a head for heights. We also note that the anecdotal evidence from employers suggests that although there has been a pandemic, Jobkeeper has had the effect of incentivising employees to remain with employers while they are being paid to stay at home in some cases, and where if the employee moved, they would not be eligible for Jobkeeper. While it seems counter-intuitive given the levels of unemployment reported in the media, it seems that finding good staff is all the harder right now.
Further to that, the company has relied on using WHV holders who were lucky/unlucky enough to be stuck in Australia when the pandemic hit. Many of those will run out of visas and have to return home, while there are no fresh WHV visa holders arriving to replace them. It’s not an issue yet but it’s likely to become one over the year as visas expire.
We also think it’s briefly worth mentioning that the turnover of the business in the original application in 2015-2016 was listed as $1,963,158. In 2018-2019, it was up to $3,464,004, and in 2019-2020 it was $4,187,287, almost double what it was in 2017, showing that the business is booking, which in turn means increased amount of work for the staff. Unsurprisingly, wages went up to match, as the company delivered on its contracts, from $958,377 in 2015-2016 to $1,706,480 in 2018-2019 to $2,205,183 in 2019-2020.
We note that in 2.72(10)(f) the Minister must be satisfied that the position is genuine, and that this can be a tricky section for case officers, given it’s broad and ill-defined, however, policy goes into great length about this section of the law.
In brief, we note that policy states in most cases it should be accepted based on the employers’ assertions in the application. We also notes that there’s various sections of potential risk, such as “Position created to secure a migration outcome,” “Tasks of the position do not align with nominated occupation,” “Position is not consistent with the nature of the business,” and that those are summed up in a list of positive and negative factors. While we note that none of us are bound by policy, we always consider it as it’s likely to be used by case officers. We don’t want to waste the Member’s time by going through it all, suffice to say we believe it’s all pretty self-evident, the position was not created to secure a migration outcome (not related to owners, it’s an established business, with a salary that meets industry standards, and the business employs many Australians) and is consistent with the business, and there are numerous other staff performing the same role in the business, and since the initial application was made turnover and wages have doubled.
Having considered the above information, the Tribunal is satisfied that the nominated occupation and position are genuine, and that the position is based in a well-established and successful specialist technical business.
For these reasons, The Tribunal finds that the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant written instrument for this purpose.
The Tribunal is satisfied that the applicant provided a recent contract of employment for the nominee dated 20 January 2021, provided to the Tribunal, indicating that the nominee’s salary is $65,208 plus superannuation.
Accordingly, the Tribunal finds that the requirements of r.2.72(10)(h) are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by the applicant, these must have been met.
As the applicant is not a party to a work agreement, the requirements of r.2.72(11) and (12) are not applicable Labour.
Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in IMMI 13/136 (being 12 months). In addition:
·the nomination must be accompanied by the evidence specified in s.140GBA(5) and (6) relating to labour market testing, and information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results for recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably. If there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events.
The Tribunal has reviewed the information and is satisfied that the applicant does not fall within any of the categories above that would exempt it from having to meet the LMT requirements.
The Tribunal notes that for nomination applications made before 12 August 2018, it is not clear from the terms of s.140GBA(3)(a) itself whether this provision requires testing to have taken place within the prescribed period prior to the time the nomination is made, or within the prescribed period prior to the time a decision on the nomination is made (in this case, by the Tribunal). However, given evidence of this LMT must accompany the nomination (s.140GBA(3)(b)), it appears that the relevant period should be determined by reference to the date that the nomination was made.
Sections 140GBA(6)(a)(i) and (ii) provide that the LMT evidence must include details of any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the applicant and details of fees and other expenses paid or payable for that advertising.
Having reviewed the nomination application on the Department file, the Tribunal finds that in the LMT section of the nomination application form, the person completing the form stated that the nominated position was advertised on Indeed.com from 4 to 10 October 2017 with no charge for placing the advertisement. The Tribunal is further satisfied that the applicant provided with the nomination application a copy of the Indeed.com ad.
Based on the above, the Tribunal is satisfied that LMT was undertaken in the specified period (the 12 months prior to lodgement of the nomination application), the nomination was accompanied by evidence of this, including the text of the advertisement and the dates it ran.
For these reasons, and given there is no evidence that there were any retrenchments or redundancies in the relevant period, the Tribunal finds that the labour market testing requirements in s.140GBA are met.
Accordingly, 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.
Alison Mercer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2021] AATA 1382

4 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies