Sydney Waste Pty Ltd (Migration)
[2023] AATA 893
•6 April 2023
Sydney Waste Pty Ltd (Migration) [2023] AATA 893 (6 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Sydney Waste Pty Ltd
REPRESENTATIVE: Mr Benjamin Kramer (MARN: 1386609)
CASE NUMBER: 1922321
HOME AFFAIRS REFERENCE(S): BCC2019/3314288
MEMBER:Karen McNamara
DATE:6 April 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 06 April 2023 at 3:47pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – internal auditor – annual market salary rate – joint hearing of nomination and visa reviews – evidence of determination of rate provided – exceeds threshold – tasks of position and nominee’s performance in role – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(15)(c), 2.73CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30STATEMENT 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 22 July 2019 to refuse to approve the application by Sydney Waste Pty Ltd (the applicant) for 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 applied for approval on 2 July 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate refused the application on the basis the nomination did not satisfy r.2.72(15) (c) of the Regulations because the delegate was not satisfied that the applicant determined the Annual Market Salary Rate (AMSR) for the nominated position in accordance with the method specified in IMMI 18/033. Accordingly, the delegate found the application did not meet r.2.72(15).
The applicant applied to the Tribunal on 12 August 2019, for review of the delegate’s decision.
On 29 March 2023, the applicant represented by Mr Elon Zizer appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ma Vaneza Suiza Ong (the nominee) in the related matter for the subclass 482 visa (AAT Case file 1924498). The related matters were heard concurrently in a combined hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 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.
Background
The applicant provides waste management services in the Sydney metropolitan area. The services include waste collection and processing of recyclables and waste materials to industrial, commercial, retail, and residential premises. Information before the Tribunal shows the business was registered on 22 September 1998 and the business employs approximately 52 staff.
On 2 July 2019, the applicant lodged an application under the Temporary skill shortage Subclass 482 stream for the occupation Internal Auditor (ANZSCO 221214). The nominated guaranteed earnings and market salary rate is $65,000 per annum.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that:
·the applicant is nominating an occupation under s.140GB(1)(b) in relation to a proposed applicant for a subclass 482 visa, as per r.2.73(1).
·the nomination was made using the approved form and fee, as per r.2.73(3),(4) and (5);
·the nomination was accompanied by the applicable training contribution charge, as per r.2.73(5A).
·the nomination was made in the Medium term stream as the nominated occupation of Internal Auditor (ANZSCO 221214) is listed as a Medium and Long term specified skilled occupation in the relevant instrument, LIN 19/048, as per r.2.73(6);
·the applicant identified the nominee Ms Ma Vaneza Suiza Ong in the nomination, as per r.2.73(8);
·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nominating business, as per r.2.73(9);
·the nomination includes disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act: r.2.73(12);
·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per r.2.73(13); and
·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14).
For these reasons, the Tribunal is satisfied that the requirements of r.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 before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator or an associated person.
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.
Departmental records indicate that the applicant was most recently approved as a standard business sponsor on 19 March 2019 to 19 March 2024, therefore the agreement is valid.
The Tribunal is therefore satisfied that the applicant is a standard business sponsor.
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 evidence that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge.
For these reasons, the Tribunal finds that the requirements of r.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).
The Department’s records indicate that the nominee, Ms Ma Vaneza Suiza Ong has never held a Subclass 457 or 482 visa.
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, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.
The Tribunal finds that the nominated occupation of Internal Auditor (ANZSCO 221214) is specified in the Medium and Long-term strategic skilled occupation list in LIN 19/048.
The Tribunal is satisfied that the nominated occupation is not precluded by an inapplicability condition (or ‘caveat’) specified in LIN 19/048.
For these reasons the requirements of r.2.72(8) are met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal has had the benefit of discussing with the applicant and nominee at the hearing, the business’s financial profile, organisational structure, operations and the precise tasks and responsibilities of the nominated position.
The Tribunal has considered the ANZSCO occupational dictionary with regard to the occupation of Internal Auditor (ANZSCO 221214). ANZSCO states in relation to the occupation of Internal Auditor as follows:
2212 Auditors, Company Secretaries and Corporate Treasurers
Auditors, Company Secretaries and Corporate Treasurers conduct audits of accounting systems, procedures and financial statements, manage corporate funding and financial risk, and administer and review corporate compliance activities.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. In the case of Corporate Treasurers and Company Secretaries, at least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1).
Registration or licensing may be required.
Tasks Include:
- arranging, giving notice of and attending meetings of directors and shareholders
- advising organisations' governing boards on matters concerning compliance with stock exchange listing rules, relevant legislation and corporation practice
- supervising organisations' share capital by preparing documents and share issues, and handling share transfers
- controlling treasury and treasury systems and establishing and reviewing risk management objectives and treasury policies
- identifying, managing and reporting on financial risks
- assisting with equity management, debt management, securities and taxation planning issues
- collecting, analysing and interpreting information on the financial standing, cost structures and trading effectiveness of organisations
- devising, re-organising and establishing budgetary cost control and other accounting systems such as computer-based systems
- conducting audits and investigations and preparing financial statements and reports for management, shareholders, and governing and statutory bodies
- evaluating the cost effectiveness and risks of operational processes, activities, policies and systems
- reporting to management on the existence and effectiveness of the system of internal controls
- establishing audit objectives, and designing and implementing audit methodologies, processes and audit report criteria
Occupations:
- 221211 Company Secretary
- 221212 Corporate Treasurer
- 221213 External Auditor
- 221214 Internal Auditor
221214 Internal Auditor
Alternative Title:
- Audit Officer
Examines, verifies, evaluates and reports on financial, operational and managerial processes, systems and outcomes to ensure financial and operational integrity and compliance, and assists in business process reviews, risk assessments, developing deliverables and reporting progress against outcomes. Registration or licensing may be required. Skill Level: 1
The applicant provided to the Tribunal evidence outlining the role and duties of the nominated position including a job description and ANZSCO task comparison stating the following:
Position Description
PRIMARY OBJECTIVE
To identify and measure key performance indicators of the business through detailed analysis of financial, operational and safety data and to use this information to assist senior management in decision making about the performance and strategic direction of the business.
The role will also conduct Internal Auditing functions specifically with regards the company’s Internal Management System (IMS) and will assist in the adherence to the company’s policies on Quality, Safety and the Environment. It will play a key role in ensuring the company retains its Australian Standard accreditation for OH&S, Quality and the Environment.
SPECIFIC ACCOUNTABILITIES
• Analyse systems to ensure risks are identified and eliminated.
• Ensure company IMS system is managed in compliance with all relevant rules and regulations, policies and procedures.
• Establish audit cycle and assess risk management, risk control and financial reliability.
• Provide analysis, reports and recommendation on business operations.
• Preparation of monthly management reports tracking financial performance against budget
• Providing commentary on management reports
• Preparation of cashflow forecasts
• Analysing trends and financial performance across business units
• Taking part in systems and process improvement initiatives
• Assist in maintaining Standard Operating Procedures and assist in ISO accreditation process.
• Scrutinize reliability and validity of financial data and report any irregularities.
• Conduct financial investigation on suspected fraud account transaction
• Assist in establishing and maintaining company budget guidelines to monitor expenses and control costs
SKILLS & ATTRIBUTES
* A working knowledge of the company’s systems to be able to source information for analysis.
* A strong IT aptitude to be able identify weaknesses in processes and systems.
* Attention to detail with an analytical mind
* Excellent written and verbal communication skills
* Team player
* A relevant business degree preferably in accounting, or related discipline
* A post graduate qualification would be highly desirable
Comparison of Position Description with ANZSCO Occupation Information
The tasks and duties described by ANZSCO for the occupation Internal Auditor are extracted in the left column with the consistent or correlative tasks taken from the Position Description in the right column of the table below.
advising organisations' governing boards on matters concerning compliance with stock exchange
listing rules, relevant legislation and corporation practice
Providing commentary on management reports controlling treasury and treasury systems and establishing and reviewing risk management objectives and treasury policies Preparation of cashflow forecasts Scrutinize reliability and validity of financial data and report any irregularities. identifying, managing and reporting on financial risks Analyse systems to ensure risks are identified and eliminated. assisting with equity management, debt management, securities and
taxation planning issues
Preparation of cashflow forecasts collecting, analysing and interpreting information on the financial standing, cost structures and trading effectiveness of organisations Preparation of cashflow forecasts Preparation of monthly management reports tracking financial performance against budget
Analysing trends and financial performance across business units Scrutinize reliability and validity of financial data and report any irregularities.devising, re-organising and establishing budgetary cost control and other accounting systems such as computer-based systems Preparation of monthly management reports tracking financial performance against budget
Analysing trends and financial performance across business units
conducting audits and investigations and preparing financial statements and reports for management, shareholders, and governing and statutory bodies Establish audit cycle and assess risk management, risk control and financial reliability.
Assist in maintaining Standard Operating Procedures and assist in ISO accreditation process.Conduct financial investigation on suspected fraud account transaction
evaluating the cost effectiveness and Taking part in systems and process risks of operational processes, activities, policies and systems improvement initiatives
Assist in establishing and maintaining company budget guidelines to
monitor expenses and control costs
reporting to management on the existence and effectiveness of the system of internal controls Ensure company IMS system is managed in compliance with all relevant rules and regulations, policies and procedures. establishing audit objectives, and designing and implementing audit methodologies, processes and audit report criteria Taking part in systems and process improvement initiatives
Assist in maintaining Standard Operating Procedures and assist in
ISO accreditation process.
The Tribunal has afforded consideration to the oral evidence obtained at the hearing in conjunction with supporting documentation, including the nominee’s most recent employment contract (signed and dated by the parties on 14 September 2022), nominee’s Income Statements, and details of the nominee’s work history with the applicant.
Evidence before the Tribunal shows that the nominee commenced working for the applicant in the occupation of Internal Auditor in June 2017 and has continued to be employed by the applicant since.
The applicant provided an in-depth description of the tasks and responsibilities of the position, aligned to the applicant’s business size and operational requirements. The nominee provided detailed explanation of her tasks and responsibilities including the provision of practical examples.
Given the evidence before it, the Tribunal is satisfied that the position offered to the nominee is genuine and is what it purports to be. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s business, its size and activities, the tasks to be undertaken in the position and the nominee's experience and qualifications. The Tribunal is satisfied on the evidence before it that there is a business need for the position which supports that the position associated with the occupation of Internal Auditor is genuine. The Tribunal has also had regard to the applicant’s financial evidence (including 2021and 2022 financial year statements and BAS returns) provided to the Tribunal.
Accordingly, in consideration of the evidence before it, the Tribunal is satisfied that the position associated with the nominated occupation is genuine and it finds that the requirements of reg 2.72(10)(a) are met.
The Tribunal accepts from the material provided, including the nominee’s employment contracts dated 24 June 2019 and 14 September 2022, Income Statements and details of the nominee’s work history with the applicant, that the position is a full time one. Accordingly, it finds that r.2.72(10)(b) is met.
As the criteria in both rr.2.72(10)(a) and (b) are satisfied, accordingly the requirements in r.2.72(10) are met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the relevant instrument IMMI 18/035 (the Tribunal is satisfied that the nominated occupation in this case is not specified in the relevant written instrument). In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (r.2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (r.2.72(12)). In this case, the applicant is not an overseas business sponsor and r.2.72(11) must be met.
The applicant has provided to the Tribunal a signed employment contract dated 14 September 2022, setting out the nominee’s terms and conditions of employment and provides a base salary (exclusive of superannuation) of $66,277 per annum.
For these reasons the requirements of r.2.72(11) are met.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033 (currently $250,000). Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:
·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: r.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: r.1.03.
·the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT, currently $53,900), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.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).
The delegate refused the nomination on the basis that the applicant did not satisfy r.2.72(15) (c) because the delegate was not satisfied that the applicant provided sufficient evidence to support it determined the Annual Market Salary Rate (AMSR) for the nominated position in accordance with the method specified. Accordingly, the application did not meet r.2.72(15).
The Tribunal has had the benefit of sighting evidence provided by the applicant which support the annual market salary rate for the occupation, how this rate was determined and that this rate exceeds the current TSMIT of $53,900. The Tribunal therefore on the basis of this evidence, has formed a different view and accepts the evidence presented by the applicant in addressing the requirements of regulation 2.72(15).
Evidence before the Tribunal includes the nominee’s employment contract dated 14 September 2022, The Professional Employees Award 2020, Payscale salary survey information and various job advertisements.
The Tribunal is satisfied from the evidence provided, that the nominee’s annual earnings as indicated on the contract of employment (dated 14 September 2022) will be $66,277 per annum exclusive of superannuation. As this amount is less than the amount specified in the relevant instrument for r.2.72(15)(b) (IMMI 18/033 specifies this as $250,000), the requirements of r.2.72(15) must be met.
The Tribunal is satisfied that there is no equivalent Australian employee working in the nominated occupation in the applicant’s business. The Tribunal has therefore followed the methodology set out in IMMI 18/033 to determine the market rate that would be paid to an equivalent Australian employee.
Evidence before the Tribunal supports that the applicant determined the annual market salary by way of an applicable instrument, relevant to this matter i.e. MA000065 -Professional Employees Award 2020 and by way of reviewing advertisements for similar positions and consideration of industry salary survey information. In support of determining the annual market salary the applicant has provided to the Tribunal a copy of the Professional Employees Award 2010 (the Tribunal notes MA000065 Professional Employees Award 2020 is relevant to this matter) various advertisements and industry salary survey information posted on Adzuna, Seek, Workforce Australia and PayScale websites The advertisements list the salary range for an Auditor between $50,000 to $130,000 per annum. PayScale notes the median salary for an Internal Auditor is $67,000 per annum.
Submissions before the Tribunal state under the Professional Employees Award 2020, the nominee is classified at Level 2 – ‘Experienced professional/quality auditor’. The award indicates a minimum hourly rate of $33.43 and annual full-time wages of $66,277.
Accordingly, on the information before it, the Tribunal is satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(15)(c) are met.
The Tribunal is satisfied that annual market salary rate exceeds the current TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.
The Tribunal finds that the nominee’s annual earnings of $66,277 (as indicated in the nominee’s most recent contract of employment dated 14 September 2022) will not be less than the market salary rate and thus the requirements of r.2.72(15)(e) are met. It further finds that the nominee’s total annual earnings as per the contract of employment and nominee’s bank statements indicate the salary exceeds the TSMIT, and thus the requirements of r.2.72(15)(f) are met.
Finally, the Tribunal is satisfied that there is no information before it that indicates that the annual market salary rate is inconsistent with Australian labour market conditions relevant to the nominated occupation. It therefore finds that the requirements of r.2.72(15)(g) are met.
Accordingly, the requirements of r.2.72(15) 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) applies.
The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the employment contract dated 14 September 2022. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.
The Tribunal is therefore satisfied that r.2.72(18)(a) is met. There is no evidence before the Tribunal that the applicant has engaged in discriminatory recruitment practices. Accordingly, the Tribunal finds that r.2.72(18)(b) is met.
Labour Market Testing
Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument LIN 18/036. In addition:
·the nomination must be accompanied by the evidence specified in ss 140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s 140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;
·the labour market testing must have been undertaken in the manner determined under s 140GBA(5) (for nominations made on or after 12 August 2018);
·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and
·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.
The evidence of labour market testing that must accompany the nomination relates to information about attempted recruitment, including details of advertising for the position or similar positions, and advertising fees and expenses. It may also include information about the sponsor’s participation in relevant job and career expos, details of other fees, expenses and results of recruitment attempts, and other evidence such as recent labour market trend research, expressions of government support, or other evidence specified by the Minister. However, if this optional information and evidence is not provided, the nomination is not to be treated less favourably.
The Tribunal considered whether the labour market testing condition applies to the applicant, having regard to:
·whether it would be inconsistent with an international trade obligation specified in the relevant instrument of the Register of Instruments: Business Visas - s.140GBA(1)(c); and
·whether the nomination is subject to the major disaster exemption or the skill and occupational exemptions of the Register of Instruments: Business Visas - s.140GBB and 140GBC.
Having regard to the evidence before it, the Tribunal is satisfied the labour market testing condition applies to the applicant. There is nothing before the Tribunal to suggest any exception applies that is subject to the category of major disaster exemption or the skill and occupational exemptions. Nor is there anything to suggest it would be inconsistent with an international trade obligation specified in a relevant legislative instrument.
Accordingly, the applicant must satisfy the LMT requirements above.
As the application is subject to the LMT requirement, the applicant must demonstrate the testing was undertaken in the manner required by the instrument (LIN 18/036). The application must attach evidence of that testing, and the availability of any suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder not readily available to fill the nominated position: 140GBA(d).
The legislative instrument includes details of the method for advertising the position. It requires there must be at least two advertisements commissioned by the sponsor that are relied upon, and which appear on a recruitment website with national reach in Australia, similarly in print media with national reach in Australia or on radio with national reach in Australia. The position must include its title, skills and experience required, the sponsor’s name or the agency being used, and the salary for the position, if the earnings are lower than $96,400.
The instrument further provides that for the purposes of paragraph 140GBA(3)(aa) and 140GBA(6), the applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published in print, radio or by website address.
S.140GBA (6AB) provides that the duration determined for the purposes of s.140GBA(6)(d) must be at least 4 weeks.
The Tribunal has reviewed the information provided with the nomination application made on 2 July 2019 and is satisfied that:
·LMT was undertaken on 23 May 2019 for over 4 weeks
·The position was advertised on jobactive and Indeed websites. The advertisements were in English and identified the name of the recruitment agency and provided the salary range of $60,000 to $80,000 per annum.
·Information before the Tribunal shows there were eight applications received in response to the advertisement posted on Indeed and 87 in response to jobactive. Evidence supports that twelve were shortlisted with five interviewed and subsequently found unsuitable.
·The applicant indicated on the nomination application form (2 July 2019) that it had not retrenched or made redundant any employees in the 4 months prior.
In conclusion, the Tribunal is satisfied that:
·LMT was undertaken in the specified period, as per s.140GBA(3)(a) and (4);
·LMT was undertaken in the manner as set out under LIN 18/036: s.140GBA(3)(aa) and (5);
·It was accompanied by evidence of the testing as required by s.140GBA(3)(b)(i) and (6A); and
·there was no suitable qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder readily available to fill the nominated position, as per s.140GBA(3)(d).
The Tribunal is further satisfied that the applicant indicated in the nomination application and at the hearing, that no Australians or permanent residents were made redundant/retrenched from the nominated occupation, and therefore s.140GBA(4A) does not apply in this case.
For these reasons, the Tribunal finds that the labour market testing requirements in s.140GBA are met.
Nomination training contribution charge
Section 140ZM imposes a liability on a person to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s 140GB(2)(aa).
The Tribunal is satisfied that the applicant is liable to pay the training nomination charge as the application was made on 2 July 2019. Item 5(2) of the Migration (Skilling Australians Fund) Charges Regulations 2018 sets out the formula for calculating the amount due, which is the base amount prescribed in the legislation multiplied by the number of years of sponsorship. In this case, the applicant’s business has an annual turnover of more than $10,000,000 and so the base amount is $1,800 (per Item 5(2)(b) of the Migration (Skilling Australians Fund) Charges Regulations 2018). The length of visa approval sought is 2 years. Therefore, the amount due is $3,600.
The applicant has provided the Tribunal with a copy of a receipt dated 2 July 2019 for payment of the relevant training nomination charge in the amount of $3,600. Therefore, the requirements of s.140GB(2)(aa) are met.
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.
Karen McNamara
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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Immigration
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Administrative Law
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