The Trustee for the Molloy Family Trust (Migration)

[2022] AATA 2683

The Trustee for the Molloy Family Trust (Migration) [2022] AATA 2683 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for the Molloy Family Trust

REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)

CASE NUMBER:  1829560

HOME AFFAIRS REFERENCE(S):          BCC2018/3426917

MEMBER:Penelope Hunter

DATE:21 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2022 at 11:10am

CATCHWORDS
MIGRATION – nomination – Short-term stream – Cafe or Restaurant Manager – applicant was not the subject of an approval by the Minister as a standard business sponsor – no evidence that satisfies the manner of labour market testing in relation to a nominated position as prescribed by the Instrument – labour market testing requirements in s 140GBA are not met – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GBA
Migration Regulations 1994, rr 1.13, 2.72, 5.19

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 September 2018 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).

2. The applicant applied for approval on 10 September 2018. 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 Short-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy subregulation 2.72(5) of the Regulations because the applicant was not the subject of an approval by the Minister as a standard business sponsor.

4. Ms Rachel King on behalf of the applicant appeared before the Tribunal via MS Teams video conferencing on 31 May 2022, to give evidence and present arguments. The hearing was a combined hearing with the review application for that of the related nominee, Ms Kamaljit Kaur Manjal, matter number 1833238.  Ms Kaur Manjal also attended the hearing and provided evidence.

5. The applicant was represented in relation to the review, and their representative Mr Harpal Bajwa, also attended the hearing and provided submissions to the Tribunal.

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 this case is whether the applicant meets the criteria for approval of the nomination. The nomination is to be approved if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). In addition, the applicant must also meet any labour market testing requirements under s 140GBA of the Act.

8. The issue before the delegate was whether the applicant was a standard business sponsor, this is a requirement of regulation 2.72(5).

9. In a submission to the Tribunal on 15 November 2021, the sponsoring business furnished the Tribunal with a copy of a letter from the Department approving the sponsoring business as a standard business sponsor. This approval took place on 19 March 2019 and is effective until 19 March 2024.

10. The Tribunal is now satisfied that the requirements of reg 2.72(5) are met, however amongst the various requirements for approval on review of the nomination an issue has arisen in respect of whether the applicant has met the relevant labour market testing requirements.

    Labour Market Testing

11. 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 the Minister has determined it would be inconsistent with a specified international trade obligation.

12. In this case there is no applicable international trade obligation with India, which is the country of origin of the nominee, Ms Kaur Manjit. The nominated position of Cook within the applicant’s business is not an occupation or position requiring a particular level of qualification for which there is an exemption. Furthermore, the location of the applicant’s business in Cardwell is not the subject of a major disaster exemption. For approval of the nomination application the applicant must therefore demonstrate that they have met the labour market testing condition.

13. 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 (Period, manner and evidence of labour market testing) Instrument 2018 (the Instrument).

14. 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.

15. In the present case the Instrument requires that the sponsoring business advertise the position within 4 months of making the nomination application. The application under review was lodged on 10 September 2018, and the applicant set out in the application form that a position advertisement was available online and in paper, from 27 August 2018 for 21 days. This is within the period of 4 months as required by s 6 of the Instrument.

16. The manner in which labour market testing in relation to a nominated position must be undertaken is also prescribed by the Instrument. This does apply to a select position as identified in the Instrument, however the relevant nominated position of Cook is not identified as a select position.

17. According to s 8 of the instrument, the manner of advertising is to be in English, advertised in at least two advertisements commissioned by the applicant via a recruitment website, print media or radio outlet that has national reach. As discussed with Ms King at hearing, the supporting documentation that accompanied the visa application appeared to be a screenshot of several web search results from The relevant advertisements were listed for ‘short order cook/barrista/waitress’ roles at BP Seaview Deli Café, not solely the nominated position of Cook. The positions were listed as ‘backpacker jobs’. It is unclear to the Tribunal whether possesses a ‘national reach’. The evidence presented by Ms Kaur at the hearing was that she became aware of the position due to a job vacancy sign placed at the front of the applicant’s premises. The Tribunal is also not satisfied that this form of notice meets the requirement of a print notice of national reach. The Tribunal is not satisfied that this evidence of two forms of advertisement meets the requirement of s 8(3) of the Instrument as to the method of advertisement.

18. Further, according to s 8(4) of the Instrument the details of the position including the title or description of the position, the skills or experience required for the position, the name of the approved sponsor and the salary for the position must be included in the advertisement. The nomination approval application form filed by the applicant stated that the advertisement was in English, included the job title of Cook, the salary of $59,130 and that the position was full time. However this information is not able to be ascertained from the screenshots submitted to the Department with the application from There is also no evidence of any print advertisement submitted to the Department.

19. Finally, there is a requirement that the advertising take place for a specified duration. According to s 8(5) of the Instrument, expressions of interest for an advertised position must be accepted for at least four weeks from when the advertising is first published. This nomination application was made on 10 September 2018. The information set out by the applicant in the nomination application form is that the advertisement first became available on 27 August 2018. Therefore, the advertisement provided less than 4-weeks for applicants to apply before the applicant lodged the nomination application form. From the information in the visa application form, which was not disputed at hearing or in subsequent submissions, the applicant also has not satisfied s 8(5) of the Instrument.

20. When the Tribunal asked Ms King at the Tribunal hearing about the applicant’s labour market testing she claimed that the applicant had undertaken additional online advertising through seek.com.au and another organisation. Ms King also told the Tribunal that the applicant also had advertisements in the local paper and around the premises constantly. The Tribunal identified that no evidence of this claim was available on the Department file and it did not appear to have been provided with the application. Ms King claimed that evidence that met the requirements of s 8 of the Instrument was available at the time of application to the Department and she claimed that it could be provided to the Tribunal following the hearing.

21. Mr Bajwa also submitted on behalf of the applicant that he believed all relevant documentation of advertising was provided to the Department at the time of application. The applicant requested and was granted a further seven days after the hearing, until 6 June 2022, to submit outstanding material, including any evidence that demonstrated that the applicant had met the labour market testing requirement. Ms King agreed that the material could be provided within this timeframe.

22. On 6 June 2022, the Tribunal received further correspondence from Ms King, requesting that the applicant be granted a further four weeks to submit outstanding material, as she claimed that she and her business partner had been unwell, they were experiencing staff shortages and further that she had engaged the services of a third party for a fee to assist. The covering letter from the applicant’s representative also requested an extension for a further four to six weeks.

23. On 8 June 2022, the Tribunal refused the request for an extension. The applicant was requested to submit any further material upon which it wished to rely by 15 June 2022. In refusing to extend the time further the Tribunal noted that information relevant to the review was first requested on 6 September 2021, extensions were then granted on 20 September 2021, 14 October 2021 and 2 November 2021. When some documentation was finally received from the applicant on 15 November 2021 it was accompanied by the assurance that all material would be provided within a further three weeks. However, no material was forthcoming within that timeframe. Upon scheduling a hearing the Tribunal then requested further information again on 13 May 2022. It was considered that the applicant had already been provided with considerable extensions,  and it was  further noted that the applicant had claimed specific evidence satisfying the labour market testing condition already existed and was provided to the Department. It was considered that this information should have been readily available to the applicant.

24. On 9 June 2022 and 15 June 2022, Ms King again telephoned the Tribunal registry and was directed to put any further requests for an extension of time in writing. The Tribunal received no further written requests. On 16 June 2022, the Tribunal received a further email from the representative of the applicant enclosing a statement from the applicant headed “Genuine Position Statement”, a Market Salary Survey Report prepared by Labour Support Pty Ltd (undated) and an email sent to Ms King regarding the delay in preparation of tax returns for the 2020 year.  The Tribunal has reviewed the material supplied and can find no evidence within that satisfies the manner of  labour market testing in relation to a nominated position as prescribed by the Instrument.

25. Furthermore, s 140GBA(6A) requires that evidence of labour market testing must accompany the nomination. This means that it must be provided to the Department at the time that the nomination was lodged. Section 9 of the Instrument sets out the kinds of evidence in relation to labour market testing that is acceptable for the purposes of s 140GBA(3). This includes a copy of the advertising material used to advertise the position. Accompanying the nomination application was only a screenshot that appeared to be taken on 6 September 2018.  The relevant advertisements were listed for ‘short order cook/barrista/waitress’ roles at BP Seaview Deli Café. The positions were listed as ‘backpacker jobs’. The relevant dates that could be gleaned from the document were 7 October 2014 and 6 October 2015. This evidence does not meet the requirements of s 8 of the Instrument. The Tribunal has provided the applicant with a reasonable opportunity to demonstrate that other evidence was provided to the Department and no relevant material has been forthcoming.

26. The Tribunal is therefore not satisfied on the evidence before it that the nomination was accompanied by evidence of the testing required in s 140GBA(3)(b).

27. For these reasons, the labour market testing requirements in s 140GBA are not met and 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

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

    Penelope Hunter
    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)…