TRAMONTINA AUSTRALIA PTY LTD (Migration)

[2024] AATA 1218

TRAMONTINA AUSTRALIA PTY LTD (Migration) [2024] AATA 1218 (16 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TRAMONTINA AUSTRALIA PTY LTD

REPRESENTATIVE:  Mr Hugo da Silva Leal (MARN: 2217825)

CASE NUMBER:  2117314

HOME AFFAIRS REFERENCE(S):          BCC2020/2843930

MEMBER:Karen McNamara

DATE:16 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 16 May 2024 at 1:10pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – marketing coordinator for direct sales – genuine position – tasks of position compared with ANZSCO description for marketing specialist – combined hearing of nomination and visa reviews – oral and documentary evidence including operational requirements, job description and relationship with external marketing agency – nominee’s qualifications and experience – labour market testing – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 360
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73

CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 15 November 2021, to refuse to approve the application by Tramontina Australia Pty Ltd, 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).

2. The applicant is a Brazilian based manufacturing and retail business specialising in houseware, kitchenware, appliances, and tools. The applicant established its Australian operations in December 2003, operating under the entity TRAS Marketing and Sales Pty Ltd. In July 2018 the applicant commenced operations under the current entity and provides direct sales to the Australian market.

3. On 18 December 2020, the applicant lodged an application for nomination for the position of Marketing Coordinator under the occupation Marketing Specialist (ANZSCO 225113). 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.

4. 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 (Marketing Specialist - ANZSCO 225113) is nominated for a Subclass 482 visa in the Short-term stream for a proposed period of employment up to 2 years.

5. On 15 November 2021, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.2.72(10)(a) of the Regulations, because the delegate was not satisfied that the position associated with the occupation is genuine.

6. The applicant lodged an application for review with the Tribunal on 23 November 2021. The review application was accompanied by a copy of the delegate’s decision.

7. On 4 March 2024, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient/representative) to appear before the Tribunal on 9 April 2024.

8. On 9 April 2024, Mr Emerson Dresch appeared before the Tribunal on behalf of the applicant to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mauricio Grisolia Chino (the nominee) in the related matter for the subclass 482 visa (AAT Case File 2119525). The related matters were heard concurrently in a combined hearing.

9. The applicant was represented in relation to the review. The representative attended the Tribunal hearings.

10. The Tribunal notes that plentiful 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.

11. 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

12. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

    The nomination must comply with the prescribed process

13. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

14. 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 Short term stream as the nominated occupation of Marketing Specialist (ANZSCO 225113) is a short term specified skilled occupation in the relevant instrument, LIN 19/048, as per r.2.73(6);

    ·the applicant identified the nominee Mr Mauricio Grisolia Chino 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, 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).

15. For these reasons, the Tribunal is satisfied that the requirements of r.2.72(3) are met.

No adverse information known to Immigration

1. 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.

2. 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.

3. For these reasons the requirements of reg 2.72(4) are met.

   Nominator is a standard business sponsor

4. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

5. Departmental records indicate that the applicant was most recently approved as a standard business sponsor on 6 March 2023 to 6 March 2028, therefore the agreement is valid. The Tribunal is therefore satisfied that the applicant is a standard business sponsor.

6. For these reasons the requirements of reg 2.72(5) are met.

   Payment of debt mentioned in s 140ZO

7. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

8. 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.

9. 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

10. 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).

11. The Tribunal has reviewed the Department's records and is satisfied that the nominee held a subclass 482 visa granted to him on 26 July 2019 as a dependent applicant, which ceased on 15 March 2021. As he held a subclass 482 visa at the time the nomination was lodged, the applicant must meet the requirements as noted above.

12. The nominee’s subclass 482 visa application does not include family members, therefore the requirements of reg 2.72(6) are not applicable.

13. In relation to r.2.72(14), as noted above, if the nominee holds a subclass 457 or 482 visa and the Minister requested evidence that the nominee satisfies the language test requirements, the applicant must provide evidence that satisfies any language test requirements specified for cl 482.223 (Short stream), or any language test requirements specified for cl 482.232 (Medium-term stream).

14. The criterion to provide evidence of the language test requirement only applies if all the limbs in r.2.72(14) apply; that is, if the nominated occupation is in the Short-term or Medium-term stream (reg 2.72(14)(a)), the nominee holds a 457 or 482 visa (reg 2.72(14)(b)), and the Minister requested the nominator to provide evidence that the nominee satisfies the language test requirement (reg 2.72(14)(c)).

15. In this case, there is no evidence that the Department requested evidence of the English language test requirement. It therefore appears that not all of the limbs of r.2.72 (14) are met and thus the criterion to provide evidence of the language test requirement is not applicable in this case.

16. However, if the Tribunal's conclusion in this regard is incorrect, it notes that the applicant has provided two International English Language Testing System (IELTS) test report forms, indicating that the nominee obtained the following scores in a test undertaken on 11 November 2020 an overall band score of 8.0 with scores of 8.0 for listening, 9.0 for reading, 7.0 for writing and 8.0 for speaking. On 8 February 2024, the nominee obtained the following scores an overall band score of 8.0 with scores of 8.5 for listening, 9.0 for reading, 8.0 for writing and 7.0 for speaking.

17. The Tribunal is satisfied that this meets the requirements set out in the relevant written instrument for these purposes. IMMI 18/032.

18. For these reasons the requirements of reg 2.72(14) are met.

    Specified occupation

19. 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.

20. The Tribunal finds that the nominated occupation of Marketing Specialist (ANZSCO 225113) is specified in the Short term skilled occupation list in LIN 19/048.

21. Further, the Tribunal is satisfied that the occupation of Marketing Specialist has attached to it the following inapplicability conditions (or ‘caveats’) in accordance with instrument IMMI 19/048:

    Item 2:   The position has nominated annual earnings of less than AUD 65,000

    Item 11:The position is based in a front-line retail setting or predominantly involves direct client transactional interaction on a regular basis

    Item 19: The position is in a business that has an annual turnover of less than AUD1,000,000

22. Department records show the applicant nominated in its application form, nominated annual earnings of $65,000. Information before the Tribunal including the nominee’s contract of employment, payroll and ATO information, show the nominee’s current annual earnings are $85,000. The Tribunal is therefore satisfied that the nominated annual earnings are not less than AUD 65,000 and therefore the position is not excluded on the basis of the position has nominated annual earnings of less than AUD 65,000.

23. In their verbal evidence, the applicant and the nominee outlined the duties and tasks of the position in the context of the business operational setting. The Tribunal also cited documentary evidence including a position description, written submission and organisation chart concerning the position held by the nominee.

24. The aforementioned documentation, in conjunction with the verbal evidence received at the review hearing, indicates the position is not based in a front-line retail setting or predominantly involves direct client transactional interaction on a regular basis. Therefore, the Tribunal is satisfied that nomination of the occupation is not excluded on the basis of being based in a front-line retail setting or predominantly involves direct client transactional interaction on a regular basis.

25. The applicant has provided to the Tribunal its most recent (1 January to 31 December 2023) Company Tax Return, financial statements and BAS returns.

26. The financial evidence indicates that the applicant’s turnover for the financial year ending 31 December 2023, exceeded $5 million. On the evidence before it, the Tribunal is satisfied that the applicant’s annual turnover was more than AUD1,000,000.

27. Therefore, the Tribunal is satisfied that the nominated position is not excluded based on a business having an annual turnover of less than AUD $1,000,000.

28. Having consideration to the entirety of the evidence before it, the Tribunal is satisfied that nomination of the occupation is not precluded by an inapplicability condition (or ‘caveat’). Therefore, the Tribunal is satisfied that the nominated occupation is duly listed in instrument LIN19/048 and is applicable to the nominee and finds that the requirements of r.2.72(8) are met.

    Position must be genuine and full-time

29. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. The intention of reg 2.72(10)(a) is to ensure that positions nominated under this provision are in skilled occupations and are genuinely needed by the nominating employer.[1]

    [1] Explanatory Statement to SLI 2013, No 146, Attachment B, p.34.

30. The Tribunal regards that r. 2.72(10)(a) is a determination of not only whether or not, the position in question is genuine in the sense that the position exists, but also whether the position really is, what it purports to be. In terms of the latter, the Courts have confirmed that the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor.[2] In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

    [2] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34] In Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court 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.

31. The Tribunal considers there is no single test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering the qualitative assessment (as per Cargo), the particular facts and circumstances of the matter and the actual tasks and duties performed and described as the nominated occupation.

32. The delegate refused the application on the basis the applicant’s nomination did not satisfy the requirements of r.2.72(10)(a), because the delegate was not satisfied that the position associated with the nominated occupation is genuine.

33. In their decision dated 15 November 2021, the delegate in summary was not satisfied that the majority of tasks that the nominee is likely to perform align substantially with the tasks of the nominated occupation of Marketing Specialist as described in the ANZSCO.

34. The delegate specifically noted that the position description provided with the application indicated that the nominee would spend 30% of their time with the "coordination of the sales process within the different areas of the company, from receiving the order, to creating the sales order and dispatching the product".  The delegate additionally noted that the applicant engaged the services of an external marketing agency.

35. Having afforded consideration to the engagement of an external marketing agency, in addition to the nominee undertaking roles (dispatching of orders) not related to the tasks of a Marketing Specialist as listed under ANZSCO, the delegate was not satisfied that the majority of the nominee's tasks would align with that of a Marketing Specialist as described in the ANZSCO.

36. The delegate additionally raised concern as to conflicting information provided by the applicant in regard to the interview process and how they identified the nominee to be the most suitable candidate.

37. The Tribunal has taken into account the available documentary evidence contained on the Department and Tribunal files and oral evidence provided to the Tribunal during the review hearing. The Tribunal has also had the benefit of discussing with the applicant and nominee at the hearing, the relationship between the nominated position and the external marketing agency, the business organisational structure, operations, the precise tasks and responsibilities of the nominated position and clarification of the recruitment process.

38. The Tribunal therefore on the basis of this evidence, has formed a different view to that of the delegate and accepts the evidence presented by the applicant and nominee, in addressing the requirements of regulation 2.72(10)(a).

39. In undertaking its assessment of whether the position associated with the nominated occupation is genuine, the Tribunal has considered a number of factors, including the tasks performed by the nominee, the primary activities of the business and the scale of those activities, the operating environment in which the position functions and the financial capacity of the business to support the position.

40. The Tribunal has considered the ANZSCO occupational dictionary with regard to the occupation of Marketing Specialist (ANZSCO 225113) which states in relation to the occupation of Marketing Specialist as follows:

    2251 Advertising and Marketing Professionals

    Advertising and Marketing Professionals develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.

    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. At least five years of relevant experience may substitute for the formal qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    Tasks Include:

    • planning, developing and organising advertising policies and campaigns to support sales objectives
    • advising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
    • coordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints
    • researching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information
    • supporting business growth and development through the preparation and execution of marketing objectives, policies and programs
    • commissioning and undertaking market research to identify market opportunities for new and existing goods and services
    • advising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels
    • creating, scheduling and publishing marketing content to social media platforms and websites
    • applying statistical modelling methods to determine the potential impact of pricing strategies on profitability
    • monitoring performance of initiatives, providing regular reporting and insights as required
    • analysing data from digital marketing campaigns and platforms
    • recommending updates to digital content to improve search engine metrics

    Occupations:

    • 225111 Advertising Specialist
    • 225112 Market Research Analyst
    • 225113 Marketing Specialist
    • 225114 Content Creator (Marketing)
    • 225115 Digital Marketing Analyst 

    225113 Marketing Specialist

    Alternative Titles:

    • Marketing Consultant
    • Marketing Coordinator
    • Marketing Officer

    Identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.

    Skill Level: 1

    Specialisations:

    • Brand Manager
    • Category Manager
    • Pricing Analyst
    • Product Manager
    • Sales Promotion Officer

1. The applicant provided to the Tribunal a written submission including a job description pertaining to the nominated occupation of Marketing Specialist and work examples supporting said duties as undertaken by the nominee. The duties as prepared and submitted by the applicant state as follows:

   “ As a Marketing Coordinator at Tramontina Australia, Mauricio’s tasks & responsibilities are directly related to the strategic marketing initiatives to support sales objectives, enhance online presence, and foster business growth.

   • Develop, plan, and organise advertising policies and campaigns to effectively support sales objectives. Coordinate the production of advertising campaigns, ensuring seamless execution of specialised activities, including artwork, copywriting, media scripting, and media placement, all within specified time and budget constraints.

   • Monitor and create marketing strategies to support online sales in partner marketplaces and Tramontina Australia's online channel.

   • Prepare marketing reports by collecting, analysing, and summarizing sales data.

   • Lead the strategic planning and execution of trade shows as integral components of Tramontina's marketing strategy.

   • Identify and select trade show opportunities aligned with company marketing objectives and target audience demographics.

   • Coordinate all logistical aspects of trade show participation, including booth setup, materials preparation, and staffing assignments.

   • Implement strategies to optimise sales performance and support business growth by contributing to the preparation and execution of marketing objectives, policies, and programs.

   • Analyse the market, consumer patterns, and preferences to generate insights that inform adjustments to pricing policies.

   • Plan and optimize the marketing budget allocation, ensuring strategic alignment and maximizing return on investments. Directing resources efficiently to achieve marketing goals and contribute to overall business success.

   • Conduct thorough research on potential demand and market characteristics for new goods and services. Collect and analyse relevant data and statistical information to inform decision-making and strategy development.

   • Provide expert advice on all elements of marketing, including product mix, pricing, advertising, sales promotion, selling, and distribution channels. The insights are to contribute to the development of well-rounded marketing strategies aligned with business objectives.

2. In evidence before the Tribunal, including written submissions and oral evidence, the applicant and nominee clarified the relationship between the external marketing agency and the responsibilities of the nominated position in addition to providing a comprehensive description of the tasks and responsibilities of the position, as aligned to the applicant’s business size and operational requirements. The applicant additionally outlined the recruitment process undertaken to identify any suitable candidates for the position.

3. Having afforded consideration to the totality of the evidence before it, the Tribunal is satisfied that the tasks as described as undertaken by the nominee, supported by examples, align with the tasks of the nominated occupation of Marketing Specialist as described in the ANZSCO. The Tribunal additionally notes clarification by the applicant and the nominee as to the relationship between the nominated position and external marketing agency. The nominated position is responsible for the development and administration of the business marketing strategy whilst working in conjunction with the external agency who are engaged to deliver the specialised technical aspects of marketing including production of advertisements and digital marketing campaigns.

4. Having carefully considered the information before it, the Tribunal is satisfied that there is a business need for the position which supports that the position associated with the occupation of Marketing Specialist (ANZSCO 225113) is genuine. 

5. In reaching this conclusion, the Tribunal gives weight to the nature of the applicant’s operational requirements, its size and activities, financial position, the tasks to be undertaken in the position, the nominee's experience, qualifications, and employment history with the applicant.

6. 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.

7. The Tribunal accepts from the material provided, including the nominee’s most recent contract of employment dated 8 February 2024, ATO and payroll records, that the position is a full time one. Accordingly, it finds that r.2.72(10)(b) is met.

8. 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

9. 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 LIN 19/212 (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.

10. The applicant has before it an employment contract signed and dated by the applicant and nominee on 8 February 2024, setting out the nominee’s terms and conditions of employment and providing a salary (exclusive of superannuation) of $85,000 per annum.

11. For these reasons the requirements of r.2.72(11) are met.

    Annual earnings

12. 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. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 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 IMMI 18/033: reg 2.72(15)( c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the Temporary Skilled Migration Income Threshold specified in the instrument IMMI 18/033 (TSMIT), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 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).

13. The Tribunal is satisfied from the evidence provided, including the nominee’s 2022/23 Income Statement, that the nominee’s annual earnings for the 2023 financial year were $78,898 plus superannuation. The nominee’s contract of employment dated 8 February 2024, stipulates remuneration base salary of $85,000 per annum. 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.

14. Evidence before the Tribunal supports at the time of application, the applicant determined the annual market salary rate ($65,000) by way of reviewing advertisements for similar positions and consideration of industry salary survey information. Information before the Tribunal includes various advertisements and industry salary survey information posted on Payscale, Indeed and Jora.

15. Payscale shows the salary range for a Marketing Coordinator is between $50,000 to $77,000 per annum, with a median salary of $61,000 per annum.

16. Job advertisements posted on the Indeed and Jora recruitment websites show salary range of $60,000 to $70,000 per annum. 

17. Contemporary information provided to the Tribunal by the applicant according to Payscale, shows the average base salary for a Marketing Specialist is $73,130 per annum. Indeed shows the average base salary is $81,119 per annum. Seek shows the salary range for a Marketing Specialist is between $75,000 and $95,000 per annum.

18. Job advertisements posted on the Seek recruitment website shows a salary range for a Marketing Specialist is between $70,000 to $80,000 per annum.

19. 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.

20. This amount is not less than the temporary skilled migration income threshold specified in the relevant instrument for r.2.72(15)(b). Relevant to this matter at the time this application was lodged on 18 December 2020, IMMI 18/033 specified this as $53,900. The Tribunal is satisfied that the annual market salary rate exceeds the relevant TSMIT of $53,900, and thus finds that the requirements of r.2.72(15)(d) are met.

21. Information before the Tribunal including the nominee’s contract of employment dated 8 February 2024 and payroll records, specify the nominee’s salary is currently $85,000 per annum.

22. Accordingly, the Tribunal finds as per the nominee’s contract of employment and payroll records, that the nominee’s annual salary rate will not be less than the annual 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 evidenced in the contract of employment and nominee’s payroll and Income statements (2022 to date), exceed the TSMIT, and thus the requirements of r.2.72(15)(f) are met.

23. 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.

24. Accordingly, the requirements of r.2.72(15) are met.

    Employment conditions

25. 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.

26. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.

27. The Tribunal has had regard to the terms and conditions of the nominee’s employment as set out in the employment contract dated 8 February 2024. The Tribunal notes that the terms and conditions set out in the nominee’s contract appear consistent with the National Employment Standards.

28. The Tribunal is therefore satisfied that r.2.72(18)(a) is met.

29. 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

30. 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).

31. 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.

32. 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.

33. 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.

34. 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.

35. Accordingly, the applicant must have undertaken the specified LMT in the specified period (in this case, 4 months prior to the nomination being lodged on 18 December 2020 as per LIN 18/036).

36. The methodology for LMT under s.140GBA(5) is set out in item 8 of LIN 18/036 as follows:

    …

    The advertisement of a nominated position

    (1) This section is made for the purposes of subsection 7(1).

    Language

    (2)The language to be used for any advertising (paid or unpaid) of a position, and any similar positions, commissioned or authorised by the approved sponsor is English.

    Method

    (3) The nominated position must be advertised:

    (a) on the Employment Department’s Jobactive website

    ( and

    (b) on or in one or more of the following:

    (i) a recruitment website with national reach in Australia (other than the website mentioned in paragraph (a));

    (ii) print media with national reach in Australia;

    (iii) radio with national reach in Australia;

    (iv) if the approved sponsor is an accredited sponsor—the approved sponsor’s website.

    (3A) Each advertisement of the nominated position for the purposes of subsection (3) must be commissioned or authorised by the approved sponsor.

    (4) Each advertisement of the nominated position for the purposes of subsection (3) must include the following details of the position:

    (a) the title or a description of the position;

    (b) the skills or experience required for the position;

    (c) the name of the approved sponsor or, if the approved sponsor has engaged a recruitment agency for the purposes of the labour market testing, the name of the recruitment agency;

    (d)the salary for the position, if the intended annual earnings for the nominated position are lower than $96,400.00 AUD.

    Duration

    (5) Applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when an advertisement for the position is first published in accordance with subsections (2) to (4) on or in any of the following: 

    (a) print media;

    (b) radio;

    (c) website.

37. The Tribunal has reviewed the information provided with the nomination application made on 18 December 2020 and is satisfied that:

    ·LMT was undertaken on 6 and 9 October 2020 for more than 4 weeks.

    ·The position was advertised on Indeed, Jobactive and Jora recruitment websites. The advertisements were in English and identified the applicant and provided the salary range of $60,000 to $70,000. 

    ·The applicant stated on the nomination application form that there were 112 in applications in response to the Indeed advertisement, 83 in response to the Jobactive advertisement and 7 applications on response to the Jora advertisement.

    ·The applicant stated that the applicants in response to the advertisements, were not eligible or suitable for the role due to “lack of experience in online marketing, lack of skills with online marketplace channel campaigns”.

    ·The applicant further indicated that it had not retrenched or made redundant any employees in the 4 months prior to undertaking LMT.

38. 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).

39. 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.

40. For these reasons, the Tribunal finds that the labour market testing requirements in s.140GBA are met.

    Nomination training contribution charge

41. 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).

1. The Tribunal is satisfied that the applicant is liable to pay the training nomination charge as the application was made on 18 December 2020. 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, at the time of application, the applicant’s business had an annual turnover of less than $10,000,000 and so the base amount is $1,200 (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 $2,400.

2. The applicant has provided the Tribunal with a copy of a receipt dated 18 December 2020, for payment of the relevant training nomination charge in the amount of $2,400. Therefore, the requirements of s.140GB(2)(aa) are met.

3. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

   DECISION

4. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

   Karen McNamara
   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)…