Tranex Solar Pty Ltd (Migration)

[2022] AATA 2186

Tranex Solar Pty Ltd (Migration) [2022] AATA 2186 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tranex Solar Pty Ltd

REPRESENTATIVE:  Mr Shuonan Zhao (MARN: 1807316)

CASE NUMBER:  1912843

HOME AFFAIRS REFERENCE(S):          BCC2019/2268838

MEMBER:Alan McMurran

DATE:29 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2022 at 4:46pm

CATCHWORDS

MIGRATION – approval of a nomination – Short-term stream – occupation of Power Generation Plant Operator – labour market testing – evidence of job advertisements – genuine position – location and details of the employment unspecified – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 140, 359, 360
Migration Regulations 1994, rr 2.72, 2.73

CASES

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 6 May 2019 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 26 April 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: The Short-term stream, the Medium-term stream, or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA.

3. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream. The nominee, Ross Matthew Gee, a British citizen, is nominated for the occupation of Power Generation Plant Operator (ANZSCO 399213). The nominee has lodged a related application for a Subclass 482 visa.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl. 140GBA (3)(d)(i) because the applicant had not provided advertising particulars including full copies of the advertisement(s) for the position. A simple screenshot submitted did not appear to be relevant to the nominated position, which appeared to relate to a “contract/temp” position.

5. On 24 May 2022, The Tribunal sent a letter to the applicant under s.359(2) requesting information. The request included particulars of the information necessary to support the nomination. The applicant was asked to respond by 7 June 2022. The applicant did not respond, and as at the date of decision, nothing further has been submitted by the applicant or on its behalf.

6. Under s.360 of the Act, the Tribunal must invite the applicant to appear. However, if the applicant has failed to respond to an invitation to give information within time, s.359C(1)(b) provides that the Tribunal may decide the review without taking any further action to obtain the information. Furthermore, s.360(3) provides that the applicant is not entitled to appear where s.359C(1) applies.

7. The applicant has lost the right to attend a hearing to give evidence and present arguments. The Tribunal has proceeded to determine the review based on the information presently available as at the time of this decision.

8. The applicant was represented in relation to the review by a solicitor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. The Tribunal has available for review the Department application and related information on the Department file, and the Tribunal file for this merits review. The Tribunal also has regard to the Act and Regulations and Department Policy.

    Position must be genuine and full-time

12. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated to determine whether it was genuine.

13. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

14. The Tribunal notes that there is no information on the Department file describing the position and the role and tasks to be performed by the nominee, other than as described in the application form itself. The job title is noted as “Team Leader”, where the tasks are described as “supervision, controlling and operating power-generation equipment”. The salary referenced in the application is AUD114,660, and the job location is said to be mainly at an address at Sydney Olympic Park.

15. ANZSCO describes the role thus:

    3992 Chemical, Gas, Petroleum and Power Generation Plant Operators

    Chemical, Gas, Petroleum and Power Generation Plant Operators control the operation of chemical production equipment, pump gas and oil from wellheads, refine and process petroleum products, and operate boilers, turbogenerators and associated plant to generate electrical power.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    • AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    Tasks Include:

    • controlling equipment performing continuous and batch processes to process chemicals and natural gas, manufacture refined petroleum products, and blend petroleum base stocks to produce commercial fuels, lubricating oils and asphalt
    • controlling the preparation, measuring and feeding of raw material and processing agents such as catalysts and filtering media into plant
    • patrolling and inspecting equipment to ensure proper operation and setting operating controls on equipment
    • analysing samples and readings and recording test data
    • controlling records of production, quantities transferred and details of blending and pumping operations
    • checking equipment for malfunctions
    • inspecting, repairing, servicing and maintaining equipment
    • operating power generation plant controls to produce required load
    • monitoring operation of power generation plant and interpreting instrument readings
    • authorising procedures to isolate high-voltage and low-voltage electrical apparatus and plant
    • writing reports and maintaining records on equipment performance, instrument readings and switching operations
    • carrying out routine operating tests.

16. The application states that the nominee’s experience in prior employment is as “Piling Operators”. The relationship of that occupation to the nominated occupation of “Power Generation Plant Operator” is nowhere explained or immediately apparent.

17. The employment agreement dated 22 January 2022 and signed on behalf of the applicant and by the nominee, appears to contradict the information in the application. It refers to the nominee being located at “Beryl NSW”, a regional location approximately midway between Mudgee and Dubbo, but not anywhere near Olympic Park Sydney. The duties, tasks, and responsibilities of the nominee at that address, which borders a national park, are not described, or outlined, other than generically in the application form, and are not listed as might reasonably be expected in the employment agreement itself. There is no comparison of the tasks as described above in the ANZSCO guide with the position proposed, and no opportunity for the Tribunal to consider any such comparison.

18. The employment contract states that the nominee “may be provided with an outline of duties before or on commencement” of the employment. No such outline has been included or submitted. At item 9.2 of the employment contract, it states the nominee is employed “as a casual employee”, and there is no reference to full-time employment. The contract states at item 9.3 that the applicant “does not guarantee …a minimum or maximum amount of work”. The contract states the nominee will be paid as a “casual” with an appropriate loading, but with no paid personal leave or annual leave and at an agreed hourly rate inclusive of any penalties. No amount is “guaranteed” as salary.

19. The Tribunal has not had the opportunity to discuss the issue of genuine position with any witness for the applicant at a hearing. The applicant lost that opportunity and has not provided any additional information about the position or submitted further documents, when invited to do so.

20. Based on the available information, and the employment information summarised above, the Tribunal finds it is not satisfied that the position nominated exists or is what the application says it is. The agreement states the position is casual, is not full-time, and the location of the employment is not as set out in the application. The tasks to be performed are at the discretion of the applicant and are not outlined.

21. The Tribunal finds that the absence of fundamental information necessary to better understand the position nominated, the tasks to be performed, when, where, and how as proposed for the nominee, cannot be ignored. The Tribunal finds it is not reasonable in the circumstances where so little information is available, to disregard the requirement to satisfy the Tribunal on review that it is a genuine position as nominated for the occupation of Power Generation Plant Operator (ANZSCO 399213).

22. The Tribunal finds that the position associated with the occupation is not genuine in its context, as required by the regulation, and is not a full-time position. 

23. For these reasons the requirements of reg 2.72(10) are not met.

    Labour Market Testing (LMT)

24. The Department found that the LMT criteria were not met, and this has also been considered in this review.

25. 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.

26. 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.

27. The way 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 IMMI 18/036. [s.140GBA (3) (aa)].

28. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument LIN 18/036 (“the relevant instrument”). 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 relevant instrument made under s140GBA(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 relevant instrument[1] refers to language, method, and duration of the advertising;

    ·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.

    [1] LIN 18/036 at Part 2, par 8 of the Instrument

29. The relevant Instrument provides that the advertising must be in English, appear in at least two advertisements commissioned or authorised by the sponsor on a recruitment website or print media, or radio, all with national reach; or if the sponsor is accredited, on the approved sponsor’s website.

30. The advertising must include the title or description of the position, skills and experience required, the approved sponsor’s name or the relevant recruitment agency involved, and where the annual earnings are less than AUD96,400, the salary for the position. [ss.140GBA (5) and (6)].

31. To comply with s.140GBA (3) (aa) and s.140GBA (6) the advertising must be for a period accepting expressions of interest for at least 4 weeks from when the advertisement is first published. The period of advertising must not start earlier than 4 months before the nomination is received by the Minister. [s.140GBA (4)]. In the case of redundancies or retrenchments, the advertising must commence afterwards. [s.140GBA (4A)].

32. As referenced above, 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.

33. In this instance, the Tribunal finds that there is no evidence that 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.

34. Accordingly, the applicant must comply with the LMT requirements under s.140GBA, the purpose of which is to ensure as far as possible, that a suitably qualified and experienced Australian citizen or Australian permanent resident or a suitably qualified and experienced eligible temporary visa holder, is not readily available to fill the nominated position.

35. The Tribunal finds the following based on the available information.

    ·The application to the Department contained a screen shot of an advertisement for a “contract/temp” position at a salary of “$35-$39.99”, at a location described as “Perth, WA 6000” classified as “Construction Plant & Machinery Operators”.

    ·The advertisement is not dated and shows “expired”

    ·The application states under the heading “Labour market testing” a declaration that “the Labour Market Testing has been conducted in accordance with current Labour Market Testing requirements” to which the applicant answers “No”.

    ·The application says advertisements appeared on Seek from 8 March 2019 and was published for 4 weeks. No copy of a Seek advertisement for the position nominated or for that period is attached.

36. There is no other information or document submitted for advertising the position.

37. Based on this information the Tribunal finds:

    ·it is not satisfied that labour market testing has been undertaken in the specified period of 4 weeks from first publication, whenever that may have occurred, and is not shown to have occurred in a period of 4 months prior to lodgement with the Minister.

    ·There is no evidence of LMT advertising undertaken in the manner specified in the relevant legislative instrument.

    ·The nomination was not accompanied with evidence of LMT for the position nominated of Power Generation Plant Operator (ANZSCO 399213) and at the application’s stated address in Sydney.

    ·There is no information to show that the nomination was accompanied by information about recent retrenchments/redundancies, which many otherwise affect the timing of the advertising.

    ·There is no evidence that any person applied or answered any advertising for the position, or evidence that there was not a suitably qualified and experienced Australian citizen, permanent resident, or eligible temporary visa holder readily available to fill the nominated position.

38. For these reasons, the labour market testing requirements in s 140GBA (3) are not met.

    Conclusion

39. Where any criteria for the nomination to be approved is not met, the Tribunal on review is not required to consider any remaining criteria otherwise required to be met.

40. For the reasons given above, 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

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

    Alan McMurran
    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)…