THE HOUR GLASS (AUSTRALIA) PTY LTD (Migration)

[2024] AATA 3466

THE HOUR GLASS (AUSTRALIA) PTY LTD (Migration) [2024] AATA 3466 (9 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THE HOUR GLASS (AUSTRALIA) PTY LTD

REPRESENTATIVE:  Mr GANG REN (MARN: 1279943)

CASE NUMBER:  2201598

HOME AFFAIRS REFERENCE(S):          BCC2020/524218

MEMBER:Andrew McLean Williams

DATE:9 September 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 09 September 2024 at 10:47am

CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – labour market testing – contract of employment with nominee signed before position advertised – advertisement did not contain sufficient details of skills required – submission that contract not operative while applicant overseas not accepted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA(3)(aa), (d)(i)
Migration Regulations 1994 (Cth), rr 2.72, 2.73

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 18 January 2022 to refuse to approve the Applicant’s nomination under s.140GB of the Migration Act 1958 (Cth) (‘the Act’) and regulation 2.72 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

2. The Applicant applied for approval on 21 February 2020. A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and regulation 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s.140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.

3. The Delegate decided not to approve the nomination on the basis that the Applicant did not satisfy subparagraph 140GBA(3)(aa) and 140GBA(3)(d)((i) in the Act.

4. Representatives of the Applicant company appeared before the Tribunal on 29 August 2024 to give evidence and present arguments.

5. The Applicant was represented in relation to the review by Mr Gang Ren (MARN: 1279943).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the Applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the Applicant is an approved work sponsor and meets the requirements in regulation 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.

   Labour Market Testing

8. 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).

9. In the current matter the Applicant is not exempt from the labour market testing requirements under any of the provisions nominated in the immediately preceding paragraph.  As such, the Applicant must comply with the labour testing requirements.

10. In accordance with the requirements specified in s.140GBA(3) of the Act, the labour market testing requirements can be satisfied if:

    (3)  The labour market testing condition is satisfied if:

    (a)the Minister is satisfied that the person has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and

    (aa)the labour market testing in relation to the nominated position was undertaken in the manner determined under subsection (5); and

    (b)the nomination is accompanied by:

    (i)evidence in relation to that labour market testing of a kind determined under subsection (6A); and

    (ii)if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the person--information about those redundancies or retrenchments; and

    (d)having regard to that evidence, and information (if any), the Minister is satisfied that:

    (i)a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and

    (ii)a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position.

11. The evidence provided by the Applicant in purported proof of it having conducted labour market testing includes the following:

    -A contract of employment for the nominee Mr Shu-Hao Chang dated 11 November 2019.  This has been signed by the Applicant’s representative on 18 November 2019 and by the Nominee, Mr Shu-Hao Chang (thereby accepting the offer of employment, and filling the vacant position) on 19 November 2019

    -Evidence of the Applicant having conducted labour market testing by means of advertising a vacancy for the nominated position in December 2019 and January 2020.

12. As the employment contract pre-dates the labour market testing, and the job advertisement was bereft of sufficient detail regarding the necessary skillset for prospective candidates, the Delegate concluded that the labour market testing efforts by the Applicant were not genuine efforts, particularly given that the advertised vacant position had already been given to the Nominee.

13. At the Tribunal hearing it was put to the Applicant that in circumstances in which the labour market testing was conducted - after the offer of employment had already been accepted by the Nominee now gave rise to a strong inference that efforts to secure a local candidate were more an exercise in ‘window dressing’ rather than an exercise in genuine labour market testing.  The Applicant did not accept that.  In light of same, the Tribunal afforded the Applicant a further period of seven days within which to make written submissions to show why their efforts at labour market testing should now be accepted as genuine.

14. A written submission was received by the Tribunal on 6 September 2024. In that submission, the Applicant submits that the labour market testing requirements in s.140GBA(3) have been criticised in submissions made to a parliamentary committee by industry stakeholders. The Tribunal is not able to have regard for that information, given that the Tribunal is required to apply the law as it currently is, and not to assume that the law may be modified at some indeterminate point in the future.

15. Additionally, the Applicant submits that, although the Nominee had already signed the contract offering employment, the employment contract was not yet operative, given that the Nominee was still overseas and could not meet the requirement that he have the legal right to work in Australia.  Because of this, the Applicant submits that it matters not that labour market testing was conducted after the date of the signing of the employment contract.

16. The Tribunal does not accept that submission and the Tribunal records that it is not satisfied that genuine efforts were made to find a local candidate for the nominated position, before the position was offered to the Nominee. Conducting labour market testing after an offer of employment has already been made and accepted by the Nominee has the result that, objectively, the impression is created that the position has already been filled by the Nominee, and there is no real intention thereafter to consider local candidates, by reason that there is not the need to find a local candidate because the search for a suitable employee has already concluded, even before the job vacancy was advertised to prospective local candidates.    

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

    DECISION

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

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

    (1)This regulation applies in relation to a person who:

    (a)is any of the following:

    (i)       a standard business sponsor;

    (ii)      a person who has applied to be a standard business sponsor;

    (iii)     …

    (iv)    …

    (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

    (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

    (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

    (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

    (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

    Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

    (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (5)The Minister is satisfied that:

    (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

    (b)…

    (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

    (6)If the nominee holds:

    (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)a Subclass 482 (Temporary Skill Shortage) visa;

    the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

    (7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (8)The Minister is satisfied that:

    (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

    (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

    (ii)      …; and

    (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

    (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

    (a)whether the occupation is:

    (i)       a short term skilled occupation; or

    (ii)      a medium and long term strategic skills occupation; and

    (b)either:

    (i)       the 6-digit ANZSCO code for the occupation; or

    (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

    (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

    (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

    (i)       the person who nominated the occupation;

    (ii)      the nominee;

    (iii)     the occupation;

    (iv)    the position in which the nominee is to work;

    (v)     the circumstances in which the occupation is undertaken;

    (vi)    the circumstances in which the nominee is to be employed in the position.

    (10)The Minister is satisfied that the position associated with the occupation is:

    (a)genuine; and

    (b)a full-time position.

    (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (11)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is not an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

    (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

    (12)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

    (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

    (14)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

    (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

    the person has provided evidence to the Minister that the nominee satisfies:

    (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

    (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

    (15)Subject to subregulation (16), if:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

    the Minister is satisfied that:

    (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

    (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

    (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

    (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

    (g)either:

    (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

    (ii)      it is reasonable to disregard any such information.

    (16)However:

    (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

    (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

    (ii)      it is reasonable in the circumstances to do so; and

    (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

    (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

    (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

    (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

    (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

    (a)either:

    (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)      it is reasonable to disregard any such information; and

    (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

    (19)…