The Trustee for Willow and Sparrow Engineering Trust & the Trustee for Yelseth Family Trust (Migration)
[2024] ARTA 63
•31 October 2024
DECISION AND
REASONS FOR DECISION
The Trustee for Willow and Sparrow Engineering Trust & the Trustee for Yelseth Family Trust (Migration) [2024] ARTA 63 (31 October 2024)
Applicant:The Trustee for Willow and Sparrow Engineering Trust & the Trustee for Yelseth Family Trust
Respondent: Minister for Home Affairs
Tribunal Number: 2118932
Tribunal:General Member S Hoffman
Place:Perth
Date: 31 October 2024
Decision:The Tribunal affirms the decision under review.
Statement made on 31 October 2024 at 10:27am
CATCHWORDS
MIGRATION – application for approval of nomination of position – civil engineering technician – labour market testing – company based in regional area, with no migration advice, and not aware of requirements at the time – nominee since successfully sponsored by another company, and applicant company since found another nominee – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), r 2.72
STATEMENT OF REASONS
APPLICATION FOR REVIEW
The Tribunal
On 12 December 2021, the applicant lodged an application for review of a decision made by a delegate of the Minister for Immigration. The application was lodged with the Administrative Appeals Tribunal (AAT).
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The decision under review
This is an application for review of the decision made by the delegate, which was to refuse to approve a 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 of the nomination on 2 November 2021. The nominated person was Mr Shiva Krishna Goundar and the nominated position was that of Civil Engineering Technician (ANZSCO 312212), with the relevant visa being a regional subclass 494 visa.
The delegate decided not to approve the nomination on the basis that the applicant had not satisfied the labour market testing requirements set out in s 140GBA.
Mr Russell Yelseth appeared before the Tribunal on behalf of the applicant on 31 October 2024 to give evidence and present arguments. Mr Yelseth is a partner in, and director of, the business. Mr Michael Chamberlain, also a partner in the business, joined the hearing shortly after it commenced. The hearing was conducted via MS Teams video.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case, as a result of the delegate’s decision, is whether the labour market testing requirements were met.
10. Mr Yelseth said that Mr Goundar was successfully sponsored by another engineering company after the applicant’s nomination was refused. He said that he has continued with this review of the delegate’s decision as he was hoping that the costs incurred in the nomination application and review processes could be refunded. The Tribunal explained that was not something that it considered. Its role is limited to reviewing the delegate’s decision.
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 it would be inconsistent with any international trade obligation of Australia determined by the Minister under s 140GBA(2).
12. The Tribunal will first consider if there are any international trade obligations relevant to this review. The nominee for the position, Mr Goundar, is a citizen of Fiji. The Tribunal has had regard to the various trade agreements of which Australia is a party or is otherwise associated. Fiji is not a party, or otherwise associated with, any of those agreements. The Tribunal is satisfied that requiring the labour market testing condition to be fulfilled would not be inconsistent with Australia’s various international trade obligations.
13. The Tribunal also notes that there was no evidence before it that the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply. The nomination application form included a question “Was Labour Market Testing required for this position?’, to which the applicant responded “Yes”.
14. The Tribunal is satisfied that labour market testing was required for the nominated position.
15. 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.
16. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036.
17. It states that the nominated position must be advertised on the Employment Department’s Jobactive website – – and in at least two advertisements on or in one or more of the following:
· A recruitment website with national reach in Australia, other than the jobactive website
· Print media with national reach in Australia
· Radio with national reach in Australia
· If the approved sponsor is an accredited sponsor – the approved sponsor’s website.
18. In a letter to the Tribunal dated 12 December 2021, Mr Yelseth wrote that Willow and Sparrow was a young company that has always used seek.com to advertise for staff. At the time of making the nomination application, they were not aware of the labour market testing requirements.
19. At the hearing, Mr Yelseth said that they had struggled to find suitable employees for some time. It was particularly difficult for them as they are based in a regional area and it was hard to get the right resources for the company. They had placed multiple adverts for an engineering position over a long period of time without being able to fill the role. They had advertised with the government agency website and got 50 to 60 responses from people who were not suitable for the advertised position. They had responses from people who were bartenders and wait staff. It seemed like they responded to the advertisement to fulfill Centrelink requirements. But Mr Yelseth had to go through those applications in case there was a genuine applicant. It was a waste of time for the business to advertise on the government website.
20. Mr Yelseth said that Mr Goundar contacted them from Fiji, and he seemed a good fit for the position, so they started the sponsoring/nomination process. Mr Yelseth said he filled in the nomination application form himself and did not seek migration advice. They are a small company without a lot of money. He said it felt like it was really unfair – felt like a kick in the guts - that the nomination application was refused because they had not done enough advertising, when they had spent so long trying to find a suitable candidate for the position and had done so much advertising without sucess.
21. In his letter dated 12 December 2021, Mr Yelseth confirmed that the labour market testing requirements had not been met. He requested that the business was not penalised because of the poor knowledge of the specific job advertising requirements. He wrote that they made the application in good faith and would not have lodged it, if they had properly understood what the requirements were.
22. Mr Yelseth said that they lost the opportunity to employ Mr Goundar and have since found someone else.
23. The Tribunal formed the view that Mr Yelseth and Mr Chamberlain were honest in giving their evidence and did act in good faith when the nomination application was lodged in November 2021.
24. However, as mentioned in the hearing, the Tribunal’s role is to review the decision made by the delegate and in so doing, have regard to the relevant legislation and regulations. The Tribunal has no discretion in this matter.
25. For the reasons just set out, the Tribunal finds that the labour market testing requirements in s 140GBA were not met. The Tribunal can only affirm the decision under review.
DECISION
26. The Tribunal affirms the decision under review.
Date of hearing: 31 October 2024
Representative for the Applicant: Not applicable
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