Uno Caffe Pty Ltd (Migration)

[2023] AATA 1875

Uno Caffe Pty Ltd (Migration) [2023] AATA 1875 (22 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Uno Caffe Pty Ltd

CASE NUMBER:  1931549

HOME AFFAIRS REFERENCE(S):         BCC2019/4871599

MEMBER:P. Maishman

DATE:22 June 2023

PLACE OF DECISION:  Perth

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

Statement made on 22 June 2023 at 11:21am

CATCHWORDS

MIGRATION – approval of a nomination – position of Chef – labour market testing – inadequate detail in job advertisements – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 140, 359, 363
Migration Regulations 1994, rr 2.57, 2.72, 2.73

CASES

Hasran v MIAC [2010] FCAFC 40

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 17 October 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 28 September 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. In this case, the occupation is nominated for a Subclass 482 visa.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 140GBA because the delegate was not satisfied the nomination met the labour market testing requirements.

4. On 26 May 2023 the Tribunal wrote to the authorised person nominated by the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide updated and current information addressing the reg 2.72 criteria in writing.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 9 June 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file.  

9. The applicant gave the Tribunal a copy of the delegates decision record which sets out the history of the application.

10. 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 issue in the present case is whether the labour market testing requirements in s 140GBA are met.

    Labour Market Testing

12. 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).

13. There is no evidence before the Tribunal to suggest any circumstances to which the major disaster or skill and occupational exemptions in ss 140GBB-140GBC apply. Nor is there anything to suggest it would be inconsistent with an international trade obligation specified in a relevant legislative instrument. Having regard to the evidence before it, the Tribunal is satisfied the labour market testing condition applies to the applicant.

14. 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 the instrument made under s 140GBA(6A) relating to labour market testing;

    ·the labour market testing must have been undertaken in the manner determined under s 140GBA(5);

    ·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

15. 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.

    PART 2 PERIOD, MANNER AND EVIDENCE OF LABOUR MARKET TESTING

    6 The period within which labour market testing is required

    (1) For the purposes of paragraph 140GBA(3)(a) and subsection 140GBA(4) of the Act, the period within which labour market testing is required to be undertaken in relation to a nominated occupation is the period of 4 months ending on the day on which the nomination form in relation to the nominated application is lodged.
    (2) Subsection (1) does not apply to a select occupation.
    Note Subsection 140GBA(4A) of the Act deals with requirements for labour market testing where there have been redundancies or retrenchments as mentioned in subparagraph 140GBA(3)(b)(ii) of the Act.

    7 The manner in which labour market testing in relation to a nominated position must be undertaken

    (1) For the purposes of paragraph 140GBA(3)(aa) of the Act, the nominated position must be advertised in Australia in accordance with the requirements under section 8.
    (2) Subsection (1) does not apply to a select position.

    8 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 Australian Government Workforce Australia website ( and
    (b) in at least 2 advertisements 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.

    9 Kinds of evidence in relation to labour market testing that must accompany a nomination

    (1) This section is made for the purposes of subparagraph 140GBA(3) and subsection 140GBA(6A) of the Act.
    (2) The kind of evidence that must accompany a nomination for a select occupation, or a select position is a written submission made by the nominator that provides reasons why a suitably qualified and experienced Australian citizen or Australian permanent resident, or suitably qualified and experienced eligible temporary visa holder, is not readily available to fill the nominated position.

    (3) The kind of evidence that must accompany any other nomination is a copy of the advertising material used to advertise the position.

16. Item 6 of LIN 18/036 requires the labour market testing to be undertaken in the four months prior to the date of the nomination application.

17. The applicant nominated the position of chef to be filled at its premises based in Strathpine Queensland in its application dated 28 September 2019. The applicant detailed numerous advertisements to fill the position from 12 February 2018. Within four months prior to the date of lodgement of the application the applicant claims to have advertised with Jora Local from 12 July 2019 for 14 days and from 4 September 2019 for 14 days. The applicant provided screenshots from the classified website Gumtree showing generic responses in May 2017, and April May and November 2018 to a Chef/Cook advertisement. Screen shots of candidates’ names from a Jora Local application.

18. The applicant gave the Tribunal emails from Jora Local dated 10 July 2019 and 10 September 2019 and from Gumtree dated 11 July 2019.

19. The Tribunal acknowledges the information provided by the applicant suggests it undertook advertising within four months prior to lodging the application for nomination approval. The Tribunal notes however that the information provided does not demonstrate the name of the applicant, or its recruitment agency, is included in the advertisements. The Tribunal is not satisfied the advertisements include the detail required to satisfy the method of advertising and Item 8(4) of LIN 18/036.

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

21. 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.

22. Further, the Tribunal requested updated and current information relevant to the requirements of reg 2.72 that are also required to be satisfied for the nomination to be approved. In the absence of updated and current information as to those requirements, the Tribunal is also unable to be satisfied that the requirements of reg 2.72 are met as required.

    DECISION

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

    P. Maishman
    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)…