Sydney Timber Floor Specialists Pty Ltd (Migration)
[2024] AATA 1597
•27 March 2024
Sydney Timber Floor Specialists Pty Ltd (Migration) [2024] AATA 1597 (27 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Sydney Timber Floor Specialists Pty Ltd
CASE NUMBER: 2113974
HOME AFFAIRS REFERENCE(S): BCC2020/2378998
MEMBER:Alan McMurran
DATE:27 March 2024
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 27 March 2024 at 10:02am
CATCHWORDS
MIGRATION – nomination – Medium-term nomination – Joiner –nominator is actively and lawfully operating a business in Australia – applicant is the standard business sponsor –– genuine need to employ a paid employee to work in the position under the nominator’s direct control – no adverse information – position associated with the nominated occupation is genuine – decision under review set asideLEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 2.57, 2.72, 5.19CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application lodged 11 October 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 27 September 2021 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, Sydney Timber Floor Specialists Pty Ltd, applied for approval on 28 September 2020. 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 Medium-term stream.
The nominee, Mr Zoltan Hajas, is a 39 year-old national of Hungary. The nominee has made a related application for the TSS visa, subclass 482, which was refused when the nomination was refused, and is also subject to a review in the Tribunal.[1] The occupation in this instance is for a Joiner (ANZSCO 331213). This review is in respect of the nomination only. The decision in relation to the visa application will follow this decision, separately considered.
[1] Tribunal case 2116705
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy paragraph 2.72(10(a) of the Regulations because the position associated with the nominated occupation was not genuine. This was because the delegate found that the applicant was related to the director and that the applicant had not conducted labour market testing in the required manner, favouring the nominee for family reasons.
As a result the delegate determined that the position was designed to facilitate the stay of the nominee, did not test the labour market for a suitably qualified Australian citizen or permanent resident, and was not lodged to fill a genuine skill shortage.
For the following reasons, the Tribunal has decided to set aside the decision 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 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 also had regard to the Act and the Regulations[2], relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines.
[2] S140GB and reg 2.72
On 25 January 2024, the Tribunal invited the applicant to provide updated and current information and to make submissions for the review.
On 7 February 2024, the applicant responded and made written submissions. The nominee also provided a written statement in his related proceedings. The nominee’s statement attempted to answer some of the findings of the delegate as to whether the position of Joiner in which he is currently occupied was ‘genuine’. A large amount of information has been submitted.
The Tribunal has had regard to all of the information and documentation made available and which is referred to where relevant in these reasons. This includes the information from the Department files for the applicant and the nominee, the Department decision, and from the information available to the Tribunal together with the written submissions. The information includes the material provided recently and which was not available to the Department for consideration.
No Hearing
Having considered all the available information and submitted documentation as provided and updated for the review, the Tribunal formed the view that it could finalise the nomination review favourably for the applicant in accordance with s 360(2)(a)[3].
[3] Tribunal may decide the review in the applicant’s favour on the basis of the material before it and without a hearing.
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[4] which includes 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 Medium-term stream pursuant to the relevant instrument [5].
[4] Joiner ANZSCO 331213
[5] LIN19/048 (compilation) commenced relevantly for this application on 21 March 2019.
The nominee is nominated to work full-time in the nominated occupation.
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, which is in accordance with the current requirements for payment of the fee and as assessed by the Department accordingly.
The nomination includes the proposed medium-term stay for up to 4 years under an employment contract, granted on the basis of the nomination. The applicant’s annual turnover as submitted (FYE 2020), was greater than $100,000, but less than $1,000,000.00.
The Tribunal finds that the application includes the following certifications:
a.the relevant 6-digit occupation code, Joiner ANZSCO 331213, with the name of the occupation, identifying the nominee in the nomination.
b.the head office location at Randwick, Sydney, NSW, from where the business is carried out. The applicant’s business in the construction industry involves site-work for the nominated employee at various Sydney locations.
c.the applicant’s turnover at the time of application (28 September 2020) at $719,430.00.
d.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.
e.the nominee’s original employment contract dated 16 September 2020 updated as at 6 February 2024. The contract is a written employment agreement in short format, which requires compliance with Commonwealth, and State, employment laws and is signed by the parties.
f.the nominator’s certification states the tasks of the nominated occupation include a significant majority of the tasks specified for the occupation of Joiner ANZSCO 331213, and that the qualifications and experience of the nominee are commensurate with those specified for the occupation in accordance with the relevant instrument. The occupation is not exempted from any additional requirements.[6]
g.There are no applicable caveats (limitations) for the occupation.
[6] IMMI 18/035
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.
There is no evidence or information before the Tribunal of any adverse information known to Immigration about the applicant or a person associated with the applicant.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The purpose of this criterion is to ensure that a person who is a standard business sponsor or a party to a work agreement when they make the nomination is still a standard business sponsor or a party to a work agreement when the decision on the nomination is made.[7]
[7] Explanatory Statement to SLI 2009, No 115, p.26.
Department records confirm that the applicant is an approved business sponsor for the period from 30 September 2020 until 30 September 2025.
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 s140ZO 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 phrase “applies to the nominee” in the regulation bears its ordinary meaning. The Tribunal has had regard to all the material before it. The Tribunal is satisfied that the nominee is trained as a Joiner and is working in the construction industry in the role and that the occupation as nominated for the position, Joiner ANZSCO 331213, applies to the nominee in accordance with the relevant instrument.[8]
[8] Discussion follows as to whether the position is ‘genuine’, which it needs to be in order to ‘apply’ to the nominee.
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’s analysis follows.
Full-time position
Reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The available evidence including a copy of the employment contract for the nominee confirms the employment is full time[9] and which the Tribunal accepts is in fact the case.
Is the position ‘genuine’?
[9] 38 hours pw minimum.
This was the provision that troubled the delegate. There is no specified definition of ‘genuine’. The delegate thought it was not ‘genuine’ because of the familial relationship between the director’s family and the nominee. The delegate made no findings that the position did not exist in the organisation or that the nominee was not performing the role.
The delegate determined that in order to meet the labour market testing requirements, the nominee should not be a family member, where the ‘primary reason’ in establishing the applicant’s business, and behind the nomination, was to allow the nominee to be employed and to continue to live in Australia.
The phrase[10] needs to be considered in the particular business context submitted, and from the facts arising. Those facts relied upon in this instance are contained in the application and Department information provided, the applicant’s detailed submissions on 7 February 2024 and from information generally available from the internet as to the position of Joiner and the work that the role entails. ANZSCO, as the recommended occupation guide, is also a relevant source of information about the role.
[10] “the Minster is satisfied that the position associated with the occupation is: (a) genuine;”
In this instance, the Department’s Policy is considered where the decision-maker’s attention is drawn to the employment by organisations of family members, and which lead the delegate in this instance to the view that the position was not ‘genuine’, because there was no genuine skill shortage in the applicant’s business, and that the occupation and the role was only created to facilitate the stay of the nominee in Australia.
It should be noted that the regulation provides no prohibition on a family business employing family members in nominated roles for approved occupations. The legal requirement for the decision-maker is to ensure that all statutory requirements have in fact been met, irrespective of whether the person nominated is a family member of the proprietors, or closely related by family to the organisation. It is however, a relevant consideration, alongside other considerations such as the business context, its size and operation, staff organisation for the business, the actual role and tasks performed, and the availability for the role, and the requirement that priority must be given to Australian citizens and permanent residents.
Starting with the tasks and job role itself, ANZSCO notes the role is in the same unit grouping as carpenters, who “construct, erect, install, renovate and repair structures and fixtures made of wood, plywood, lightweight steel, wallboard and other materials, and cut, shape and fit timber parts to form structures and fittings”. Tasks include:
- studying drawings and specifications to determine materials required, dimensions and installation procedures
- ordering and selecting timbers and materials, and preparing layouts
- cutting materials, and assembling and nailing cut and shaped parts
- erecting framework, panelised systems and roof framing, laying sub-flooring and floorboards and verifying trueness of structures
- nailing fascia panels, sheathing roofs, and fitting exterior wall cladding and door and window frames
- assembling prepared wood to form structures and fittings ready to install
- cutting wood joints
- may construct concrete formwork
- may repair existing fittings
- may work with plastic laminates, Perspex and metals
The Tribunal had had regard to the statement submitted from the nominee and the submissions from the director, Mr. Zsolt Toth and the work reference supplied from a contractor, Redwood Carpentry[11] as to the work and skills of the nominee. The Tribunal has also had regard to the nominee’s qualifications and extensive work experience starting overseas in 1999 and in Australia since 2014 and his personal statement and the photographs submitted.
[11] 1 January 2024
The evidence discloses to the Tribunal’s satisfaction that the applicant’s director was performing the role for many years before starting the applicant company in 2015. At that time, the nominee was engaged part-time while a student. The director was performing the role alongside contractors and as the business grew, it is clear that the role for a Joiner exists, that it is one of the main positions in the enterprise, and that it is essential for the business to operate to employ carpenters and joiners.
The Tribunal finds that there is no issue raised concerning the nominee’s work history, training and experience and capacity to perform the occupation, supported by the information provided and which the Tribunal accepts. The Tribunal finds that the nominee is performing the tasks associated with the role.
From the perspective of whether the nominated position exists within the business, alongside the existing personnel, the Tribunal has had regard to the lengthy and detailed submissions from the director[12].
[12] 07 February 2024
The business is described as a family-run flooring specialist, which “small business has consistently been the preferred choice for quality wood flooring solutions, offering excellent timber flooring services.” The applicant carries out “bespoke joinery and floor installations” primarily in Sydney’s Eastern suburbs for domestic home construction and renovations. The business was incorporated on 28 January 2015, prior to which the director had traded on his own account for approximately a decade. It remains a small business with 6 employees, including the director and his wife, who are both Australian citizens, 2 other Australian citizens and the nominee visa-holder, and 4 contractor joiners and carpenters, who are Australian citizens, and who work variously part-time and full-time with the applicant.
The nominee was engaged as a part-time contractor in 2014 while a student, and full-time since 2021 and while awaiting his visa outcome. He is now the principal joiner for the enterprise. He is responsible for all permanent joinery work and managing finishes, designs, custom cabinetry, mouldings and woodwork. The Tribunal accepts on the material before it that the nominee is trained and experienced and is genuinely performing the role of Joiner, and is performing a majority of the tasks as described in ANZSCO.
The Tribunal is further satisfied on the material before it that the position exists. The Tribunal does not agree with the delegate that the position was ‘created’ merely to facilitate the applicant’s stay in Australia. Undoubtedly, that is a benefit for the nominee, as he has candidly admitted, that he wants to continue in the role, and hopes to make Australia a permanent home. He should not be condemned by that admission, or for the fact that after a lengthy period in Australia, he has changed his mind to return home and states candidly his preference to stay. It appears in the circumstances of this case to be a goal which he is entitled to harbour, while also performing a role for which he is well-qualified and has been performing for many years, both before and since employed by the applicant, and which he wants to continue.
The Tribunal finds it is satisfied on the material before it that the position exists and that the role is genuinely for a Joiner with the nominee’s skills and experience. The Tribunal further finds that the nominee is performing a majority of the tasks required for the occupation, and accepts the written submissions in that regard both from the director and the nominee.
The Tribunal rejects the finding that the position nominated was created simply to facilitate the stay of the nominee in Australia and which was said to be the purpose behind the establishment of the business and its incorporation in 2015. The Tribunal accepts that incorporation was a natural progression of the director’s business from contractor to registered entity as a family business, involving himself and his wife and permanent employment for other contractors, including the nominee, as the business developed and grew.
The delegate further considered that the applicant had not conducted labour market testing in the required manner, because of the existing familial relationship. The issue whether the requirement for testing the Australian labour market for an employee in the role was satisfied is dealt with below.
For these reasons, the Tribunal is satisfied that the position associated with the occupation is genuine and full-time, and that the requirements of reg 2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument LIN19/212. [13]
[13] Repeals IMMI 18/035; the occupation in this case is not an exempt occupation as listed in the instrument and the additional requirements in regulation 2.72 applicable for the Medium-term stream continue to apply to this application.
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)). 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. Furthermore, the Tribunal has noted that the nominated occupation is not exempt from the requirement.
The Tribunal finds on the available information that the applicant has produced a written contract of employment signed by the parties on 16 September 2020, updated as at 6 February 2024. A copy of the agreement has been submitted. The Tribunal is satisfied that the nominee will only be engaged as an employee under the written employment agreement aligned with the copy submitted.
For these reasons the requirements of reg 2.72(11) are met.
Annual earnings (Annual Market Salary Rate or ‘AMSR’)
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.[14]
[14] IMMI18/033(Compilation) effective from 16/11/2019.
Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:
·the annual market salary rate (AMSR) 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 (TSMIT) specified in the instrument at $53,900.00[15]; 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 (g); 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).
[15] The amount for applications made prior to 1 July 2023.
As the annual earnings in relation to the occupation will not be at least the specified amount ($250,000.00), the requirements of reg 2.72(15) must be met.
The nominee is covered by the Joinery and Building Trades Award[16], which covers joinery and carpentry. The minimum weekly rate of full-time pay under the Award is set at $1,057.40 which translates as $54,984 pa. In addition, employees are entitled to allowances, and for overtime, plus statutory entitlements for holidays, sick leave, compassionate leave and for superannuation. There is no impediment to employees negotiating higher rates for wages and entitlements with the employer than those specified as minimum. Such negotiated outcomes may vary depending upon the market rate conditions applicable at the time which may take account of such things as geographical location, age and experience, skill shortages and specialist industries.
[16] MA 000029 – reference FW Ombudsman- >
The applicant had negotiated a salary of $70,000pa in September 2020 to meet the AMSR as at the time of application. The salary has increased in 2024 to $93,600.00. Information from the Internet shows current rates for joiners in Sydney range from $70,000.00 - $85,000.00. The average wage for a Joiner across Australia is $73,125.00 or an hourly rate of $37.50.[17] Given the nominee’s age and experience, the nominated salary is above the average for the role.
FWO
[17] seek.com.au – salary- Joiner
The Tribunal finds that no issues have been recorded with the Fair Work Ombudsman or the Department concerning employment issues or payment of salary. The Tribunal finds that the applicant’s salary equals and exceeds at least the AMSR for the occupation by reference to the industry standard and the relevant Award as referenced above.
Earnings - summary
For the reasons given and relying upon the provided industry and occupation evidence for the occupation of joiner, where an expected average salary in Sydney would be greater than $70,000.00 per annum, 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 applicable 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 AMSR is inconsistent with Australian labour market conditions relevant to the occupation. The evidence submitted shows the nominee is currently paid an above-average Award salary for a Joiner at the time of decision, and which is commensurate with what an Australian citizen or 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 as at the time of decision.
The Tribunal concludes for these reasons that 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.
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 Tribunal has examined the nominee’s initial (2020) and updated (2024) employment agreement and had regard to the evidence about the employment terms and conditions, as at the time of decision.
The Tribunal finds that there is no information that indicates the nominee’s employment conditions (earnings considered separately) will be less favourable than those for the Australian equivalent.
The employment agreement relied upon includes statutory requirements required by the Fair Work Act (Cth) and statutory provisions for holiday pay, and accrued sick leave and compassionate leave.
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, based on the available information and applying the language of the expression in accordance with its ordinary meaning and by reference to the evidence of the contract proffered to the nominee.
For these reasons the requirements of reg 2.72(18)(b) are met.
Labour Market Testing (“LMT”)
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. The applicant must advertise the role as required by law, unless the requirement is subject to possible exemption.
Is the applicant exempted?
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the labour market testing condition:
(a)unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or
(b)it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2) as above.
The sub-section 140GBA(2)provides:
(2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries.
Is there any LMT exemption applicable?
In this instance, the Tribunal finds there is no information that the major disaster exemption under s 140GBB applies.
The skill and occupation exemption in s.140GBC provides that the Minister may, by legislative instrument, specify an occupation for the skill and occupational exemptions.
On 17 March 2018, instrument IMMI 13/137 was repealed so that there are currently no listed skill-based specified occupations which are exempt from LMT.
The Tribunal finds that the applicant is required to comply with the LMT requirements and no relevant skill exemption applies to it.
The delegate’s decision did not consider LMT and the submissions made and made no findings in that regard.
Would the application of LMT requirements be inconsistent with Australia’s international trade (“ITO”) obligations?
The applicant submits that there is no requirement in this case for LMT compliance because there is an existing ITO agreement which prohibits it for reason of possible “inconsistency”.
The instrument LIN21/075 applies. It specifies that compliance with the LMT requirement must not be ‘inconsistent’ with Australia’s international trade obligations “determined in a legislative instrument made under subsection 140GBA(2) to require the person to satisfy the labour market testing condition, in relation to the nominated position (paragraph 140GBA(1)(c))”[18]
[18] Explanatory statement
The Explanatory Statement relevantly sets out that: “the international trade obligations are determined for subsection 140GBA(2) in LIN 21/075”.
Not all of Australia’s international trade obligations will necessarily create an exemption. The Tribunal has determined that it is necessary to analyse the relevant international trade agreements under the legislative instrument to critically examine whether they contain obligations that would be inconsistent with the labour market testing condition[19].
[19] See Project 42 Pty Ltd (Migration) [2022] AATA 2200 per DP Redfern (8 July 2022) (“Project 42”)
In Project 42, the Deputy President rejected an argument that “the effect of clause 4(a) of the relevant GATS Schedule, the terms of which must be closely examined, has the effect of exempting compliance with the labour market testing conditions because it would be inconsistent with the movement of natural persons provisions contained in the GATS.”[20]
[20] At [95]
The decision was referring to an interpretation in that instance which was directed to “intra-corporate” transfers from a GATS member country to Australia, and did not apply to just “any movement” of a person because of an employment contract or sponsorship which was not “intra-corporate”. In other words, the application of the exemption may be limited notwithstanding the existence of an international trade agreement, and depending upon the particular circumstances of an agreement.
As noted in the Project 42 decision, when considering Department Policy:
…the Department’s interpretation of the relevant provisions is that the relevant determination of the Minister only identifies the agreement and obligations that may be inconsistent and does not otherwise form the basis for a binding determination about whether the labour market condition would be inconsistent for the purposes of s 140 GBA(1)(c) of the Act. Guidance made in Department policy about the interpretation of legislation and legislative instruments are not binding and it falls to the Tribunal to form its own view on these matters.
Department Policy provides that an exemption applies where the nominee is a citizen of a WTO member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for two years immediately before the nomination is lodged.
The applicant assets that the Tribunal accept the Policy statement, guided by the recommendation on the Department website.[21] The Tribunal finds that the website guidance is not definitive. The Department information itself refers the nominator to “check first” with the relevant legislative instruments, and does not purport to be determinative for each nomination application. The warning to ‘check first’ is salutary, where membership of the WTO does not of itself purport to provide all members with the same benefits from agreements made by individual members with each other. The WTO lays out statements of principle. It is up to individual member states to make their own agreements.
[21] ttps://immi.homeaffairs.gov.au/visas/employing-and-sponsoring-someone/sponsoring-workers/nominating-a-position /labour-market-testing;
The DOHA website notes that LMT is not required in certain specified circumstances. Those circumstances are referred to as:
- the worker you nominate is applying in one of the LMT exempt categories under these ITOs and is a citizen/national of Brunei, China, Japan, Malaysia, Mexico, Peru, Thailand, Vietnam or is a citizen/national/permanent resident of Canada, Chile, South Korea, New Zealand, Singapore or the United Kingdom.
- the worker you nominate is a current employee of a business that is an associated entity of your business, and the associated entity is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand or Vietnam), Canada, Chile, China, Japan, Mexico, South Korea, United Kingdom, New Zealand, Peru, Samoa, Tuvalu, Kiribati, Tonga, Solomon Islands, Niue, the Cook Islands or Vanuatu.
- the worker you nominate is a current employee of an associated entity of your business, and that associated entity operates in a country that is a member of the World Trade Organisation (WTO), and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs, and the nominee will be responsible for the entire or a substantial part of your company's operations in Australia.
- your business currently operates in a WTO member country or territory, or Tuvalu, Kiribati, Niue, or the Cook Islands, and is seeking to set up a business in Australia, and the nominated occupation is an Executive or Senior Manager occupation for the purposes of ITOs.
- the worker you nominate is a citizen or an eligible permanent resident* of a WTO member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two years.
The nominee in this instance is a citizen or an eligible permanent resident of a WTO member country or territory and has worked for the applicant in the nominated position in Australia on a full-time basis for the last two years. Without more, the DOHA recommendation is clear. The Tribunal however, adopting the Project 42 approach, has determined its own view on the matter and considered the applicability of such a general guidance view (DOHA) against actual agreements which are specified and in place and binding on WTO members.
Firstly, it is necessary in each instance to “check for” an appropriate ITO agreement at an inter-governmental level, as there are many agreements between WTO members, dealing with varying levels of international co-operation and which do not all specifically refer to or contain the same rules for movement of citizens for work purposes. The Tribunal is satisfied on available information[22] as between Hungary and Australia, that there is no current relevant International Trade Agreement under the legislative instrument where Australia might be at risk of inconsistency with that agreement by imposing its LMT requirements for nominations for work visa applicants for nationals from Hungary.
[22] Australian Department of Foreign Affairs and Trade (DFAT) – Hungary country Brief - >
DFAT notes on its website as between the two countries that:
“ Bilateral agreements between Australia and Hungary include a treaty on Mutual Assistance in Criminal Matters and Extradition (1997), an agreement on Cooperation in the Peaceful Uses of Nuclear Energy and the Transfer of Nuclear Material (2002), a bilateral Social Security Agreement (2011), an Air Services Agreement (2016) and a treaty on Oil Stock Contracts (2018). Australia operates a bilateral work and holiday visa arrangement with Hungary enabling 500 young people every year (in each direction) to undertake extended travel and work to help fund their trip.”
The Tribunal could not find any agreement specifically exempting categories of applicants relevantly for each other’s workforce as between Hungary and Australia, except for those enjoying combined work/holiday experiences, as mentioned above.
None has been submitted or suggested by the applicant which relies simply on the guidance statement on the DOHA website.
GATS
All WTO members are parties to GATS[23] which is the agreement which sets the rules for international trade in services, which necessarily includes the provision of labour for those services.
[23] General Agreement on Trade in Services – Annex 1B to the Marrakesh Agreement establishing the WTO.
The GATS specifies 3 categories of persons who are ‘unbound’ by limitations on market access. Those categories are for executives and senior managers, as intra-corporate transferees; independent executives, for a maximum stay of up to 2 years; and individual ‘specialists’, who are subject to individual compliance with labour applicable market tests, again for an initial stay up to a maximum of 2 years, with a proviso for extension up to 4 years for the total stay.
The applicant’s nominee in this instance does not fit into a GATS Scheduled category of ‘executive’ or ‘senior manager’. The category of ‘specialist’ is not defined. On one interpretation, LMT would not be required for natural persons with specialised knowledge at an advanced level of the company operations of an employing business, and where the person has been employed for at least 2 years, or where a labour agreement was in force between the Australian government and specific industries or unions for importing labour specialists from overseas. The Tribunal finds that neither circumstance applies in the present instance.
Summary
The issue for consideration is whether it would be “inconsistent” to require the nominator to satisfy the LMT requirement in this case. The requirement in respect of WTO member countries under the GATS (and there are currently 164 member States) specifically exempts independent executives and specialists in the Schedule of Specific Commitments to that agreement[24], including relevant definitions. The Tribunal finds that the nominee is not in one of those categories or definitions.
[24] Schedule 4
The Tribunal is satisfied that the application in this case for a Joiner from Hungary is not for a position or occupation that might give rise to an inconsistency in the GATS, which binds all WTO members and which applies to nationals from Hungary. The Tribunal finds that no other ITO is applicable.
The Tribunal considers that the DOHA policy, which refers to a circumstance where the nominee belongs to a WTO country or territory, and has worked in the nominated position in Australia on a full-time basis for the last two years lacks a statutory imperative, and as noted by the Deputy President, is non-binding and requires the Tribunal to form its own view on the issue of a claimed LMT exemption.
For the above reasons, the Tribunal rejects the applicant’s claim to be exempt from LMT requirements for reason of the DOHA guidance statement alone. The Tribunal finds that the applicant in this instance, not being exempted by an ITO agreement, must meet the LMT requirements.
Is the LMT requirement met?
The applicant has further submitted that regardless of an applicable exemption, the LMT is met because the applicant advertised as required and within the relevant temporal period.
The Tribunal has dealt with the applicant’s submission as follows.
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 relevant LMT instrument provides that the advertising must be in the English language, in at least 2 advertisements, on a recruitment website with national reach in Australia, or similarly in print media with national reach, or on radio. Where the sponsor is accredited (not the case here), the advertising may appear on the approved sponsor’s website.
The advertising must continue for a period of at least four weeks from first publication and have occurred within four months of the lodgement of the application. The advertisements must include the title description of the position, skills and experience required, name of the sponsor (or the recruitment agency), and the salary for the position where the proposed earnings are lower than $96,400.
The Tribunal has had regard to the submitted summary of the applicant’s recruitment efforts and as submitted to the Department. The evidence is that two advertisements with national reach for the position appeared on line on two separate national platforms[25].
[25] Seek and Jora
On the available information the Tribunal is satisfied that the advertisements relied upon appeared for the requisite period of 4 weeks in July 2020, and within the period of 4 months prior to lodgement of the application on 28 September 2020 and contained the relevant information for the position, its location, the salary and the employer.
The director provided a written explanation for the Tribunal concerning the advertising undertaken and for selecting the nominee.
The applicant asserts[26]:
“Over time, the company faced a challenge when a reliable joiner, Sergio Victoria Collazos – joiner, left in 2019 for personal reasons. This departure raised concerns, as Zoltan emerged as the sole permanent joiner in the company.
To address this, the company explored the 482-visa application process to ensure continuity in its workforce. Looking ahead to the future of our business, we emphasize the importance of the nominee being employed as a permanent full-time employee. This strategic decision is fundamental to the stability and structure of our business. In the event of the visa holder's departure upon the expiry of their visa, it would pose a detriment to our business structure and overall company function.
The urgency for skilled joiners in Australia is underscored by its inclusion in the ACT Critical Skills List as of April 2023 on the Department of Immigration website. This recognition emphasizes the essential role that joiners play in critical industries and reinforces the company's strategic decision to explore avenues like the 482-visa application process to meet skill requirements, ensuring business continuity and alignment with current objectives.”
[26] Statement – 7 February 2024
The statement continues:
“ Advertisements were posted on two different websites, Jora and Indeed, as evidenced by the attached documents. Additionally, word of mouth was utilized to consider potential applicants suitable for the role. Despite these efforts, the applicants who responded to the advertisements lacked the necessary qualifications and work experience required for the position. At the time of posting, only four potential candidates emerged, none of whom possessed the specific skills and training essential for the role at hand. It's crucial to note that the nature of the expertise required would have necessitated special training, and the candidates lacked sufficient experience in that field.
Recognizing the need to continually fulfill workforce requirements, the position was re-advertised in 2023 from 9th of March to 10th of April and then from 1st of June to 3rd of July, this time on The decision to readvertise was prompted by an increased workload. However, it is essential to emphasise that the candidates who applied, while demonstrating interest, still did not meet the specialised skills in flooring and experience criteria required by Sydney Timber Floor Specialists. Notably, some had no prior experience in joinery and had not engaged in any occupation related to it. This thorough explanation underscores the challenges faced in finding suitable candidates within the local labour market, emphasizing the niche expertise and unique skill set required for the Joiner role.
During the first advertisement period, there were 126 applicants; however, none of them had professional experience in joinery. On the second attempt, there were 20 applicants, and only 2 of them had joinery experience, though not specifically related to flooring.”
On the information submitted and the documents produced the Tribunal is satisfied that the position was advertised as required by the regulation, and that there was no other appropriate candidate who responded to the advertising who has the nominee’s skillset for the position or who was available for selection. The evidence is that the applicant received no suitably qualified applicants in response.
The Tribunal finds it is satisfied the applicant has genuinely tested the market for the appropriate employee and chosen the nominee for his particular skillset. Having met the regulation requirement for advertising, and necessarily going through the process for that purpose, does not disenfranchise the applicant from making its own decision about whom it might be best to employ, including the nominee as a family member, and where the applicant prefers to retain the nominee as the best performing and available candidate on account of his skills and experience.
The Tribunal accepts that the advertising criteria have been met. 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.
Further, there is no evidence that any Australian citizens or permanent residents were made redundant/retrenched, prior to the advertising being undertaken, or at all.
For these reasons, the labour market testing requirements in s 140GBA have been 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 applicant in this instance is liable to pay the charge, the application having been made on 15 April 2020.
The Tribunal is satisfied on the available information that the Department has collected the charge on lodgement of the application, and which has been receipted for the applicant, and which amount includes the SAF levy as calculated for the application in the Medium-term stream.
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
MemberATTACHMENT - 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)…
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