YAAC Pty Ltd (Migration)
[2022] AATA 3118
•19 July 2022
YAAC Pty Ltd (Migration) [2022] AATA 3118 (19 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: YAAC Pty Ltd
REPRESENTATIVE: Dr Kamal Hewawasam Revulge (MARN: 1385577)
CASE NUMBER: 1909462
HOME AFFAIRS REFERENCE(S): BCC2019/1716117
MEMBER:Stephen Witts
DATE:19 July 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 19 July 2022 at 12:07pm
CATCHWORDS
MIGRATION – nomination – Motor Mechanic (General) – labour market testing was not done for this position – labour market testing requirements in s.140GBA are not met –– decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 140GBA
Migration Regulations 1994, rr 2.57, 2.72, 2.73, 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 April 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).
The applicant applied for approval on 7 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. In this case, the occupation is nominated for a Subclass 482 visa in the nominated occupation of Motor Mechanic (General) ANZSCO code 321211.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub section 140GBA because the delegate was not satisfied that the applicant met the conditions for labour market testing in relation to the nominated position.
The applicant, Mr Mathew Jefferies and Mr Andrew Johns from Yaac Pty Ltd, appeared before the Tribunal on 19 July 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review and refuse a nomination
CONSIDERATION OF CLAIMS AND EVIDENCE
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 Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that it has been provided with a copy of the delegate’s decision dated 10 April 2019 by the applicant. In this decision the delegate has contended that it is not satisfied that the applicant met the conditions for labour market testing in relation to the nominated position in accordance with the relevant legislative instrument, LIN18/036: Period, manner and evidence of labour market testing.
In particular it was contended by the delegate that insufficient evidence of advertising for the position was provided and that the applicant claimed international recognition but provided no evidence that the nominee meets this requirement as the applicant is not an internationally recognised motor mechanic.
The Tribunal notes that the applicant has provided evidence prior to the hearing. This material includes a skills assessment for a motor mechanic, ASIC company information, pay slips for the nominee, an organisation chart, a roadworthy test result and vehicle test, 2021 financial statements and tax returns, a genuineness of position report labour market test, position description, market salary report, and other material.
The Tribunal notes that the applicant is a central Victorian Kia and Isuzu dealership incorporated in 2004 and that the company delivers a series of products and services to the local community and to the greater area including selling new and used vehicles and providing after sales service. It was stated that the nominated position of motor mechanic includes activities such as the repair, maintenance, and testing of motor vehicles and other internal combustion engines and related mechanical components. It was stated that the position of motor mechanic is responsible for maintaining, testing and repairing petrol engines and the mechanical parts of lightweight motor vehicles such as transmissions, suspension, steering, and brakes and has a skill level in this unit group of 3 and includes an AQF certificate III and at least three years relevant experience.
The Tribunal notes that the applicant is led by four shareholders who equally own the company, Andrew Johns, Collen Johns, Aaron Long, and Yasmin Long. An organisation chart was provided detailing that the business employs a Dealer Principal, a general manager, sales manager, 5 salespersons, a finance manager, office manager, 2 administration managers, 3 service managers, a spare parts supervisor, 10 workshop employees including the nominee, and 3 caravan sales specialists. It was stated that of these employees one other employee, the service technician, is also a temporary visa holder, and all other employees are Australian citizens.
The Tribunal notes that it was stated that the specific duties of the nominee as a motor mechanic are the checking of vehicles to assess their fitness for driving, finding and fixing mechanical and electrical faults in vehicles, checking engines and parts, taking engines apart and reassembling, regular check and maintenance of vehicles, scheduled check and maintenance of vehicles including annual service, oil check, tyre check, engine tune up, wheel balancing and alignment, and air pollution checks. It was stated that nominee has the knowledge and experience in motor mechanics to independently perform vehicle repairs and maintenance and other motor vehicle services with minimal supervision.
The Tribunal notes that it was stated that motor mechanics’ in the business are generally paid a remuneration of $54,275 per annum.
The Tribunal notes that it was stated that the business has grown of recent years as the demand for industry services in this sector has increased strongly. It was stated that the revenue in financial year 2019, 2020 and 2021, was approximately $12 million and that is expected to rise to $13,500,000 by 2024.
The Tribunal notes that some labour market materials provided stating that the Australian market is experiencing a significant shortage in the number of motor mechanics and the therefore the business must also consider the sponsoring of someone from overseas who is qualified. It was stated that the growing demand is augmented by changes in Australia’s economic and demographic landscape and that there are significant numbers of job vacancies that cannot be filled from within Australia. It was stated that the company has tried extensively to hire professionals for the position of motor mechanic by undertaking recruitment efforts and it has utilised a number of gateways including local newspapers and also utilising the assistance of external recruitment agencies to conduct the appropriate advertising and recruitment to fill the position, including advertisements in the Indeed job portal from November 2019 and on the Seek job portal also at that time. It was stated that through this mechanism the company has considered 18 applicants for the role of motor mechanic including 14 who applied via Seek and 4 via Indeed. It was stated that the eligibility criteria for the advertisements was a bachelor degree or higher qualification relating to the role, five years of relevant experience to substitute formal qualifications and Australian citizenship or proper working rights in Australia.
It was stated that the applicants were evaluated and analysed and that unfortunately most of the applicants at that time (November 2019) did not have the necessary skills and expertise either through a lack of work experience or insufficient qualifications. The Tribunal notes that a list of the 18 candidates was provided and an assessment was made for each candidate as to their suitability for the position noting that many applicants were either not sufficiently qualified and/or had insufficient qualifications. Of these applicants 3 were international applicants.
At the hearing the Tribunal had a discussion with the parties about the application. The Tribunal had a discussion with Mr Mark Jefferies the workshop manager at the business who was able to confirm that the nominee, Mr Watte Perera, worked for the business, but was unable to state when he was first employed, what his salary was, what other benefits he may have received, and when he was employed by the business. The Tribunal requested a discussion with the nominee who was not available at the time of the hearing when requested.
The Tribunal indicated that more evidence was required for an evaluation of this application. Mr Jefferies was given some time to consult with his business and then came back to the hearing with Mr Andrew Johns, a principal of the business. Mr Johns was also unable to clarify most of the information required by the Tribunal although he could indicate that the nominee was employed in the business in January 2019. He also stated that he was currently paid a salary of $55,328. He also stated that he was not necessarily aware of this process and that he depends on a migration service to do this work for him and that he doubted that the business had been adequately informed about this matter.
The Tribunal noted to the parties that the applicant’s migration representative was in the hearing, Prof Kamal Kaunadasa, from Trans-Advisory International Lawyers who was the nominated representative for this matter. The Tribunal had a discussion with the applicant’s representative about this matter who stated that he acknowledged that labour market testing was not done for this position due to its urgency, stating that no testing was done for this specific role but that for reasons of natural justice the appeal should be granted because of the fees previously paid in the matter.
The Tribunal had a detailed discussion with the parties noting that it had given the applicant and the applicant’s representative every opportunity to provide information to the Tribunal in regard to this matter including allowing the original applicant, Mr Mark Jefferies, to provide specific evidence requested by the Tribunal during a hearing adjournment. The Tribunal notes that the applicant has stated that they rely on a migration service to provide the information required for these matters to be resolved and that for a number of previous migration matters the business had relied on this service to achieve an outcome with previous sponsorships although the applicant was unable to indicate how many of who these sponsorships were undertaken although it was noted that there were several over a period of time, and that they were managed through a migration service.
The Tribunal was concerned by the evidence provided noting that the applicant’s representative did not seek to explain his involvement with this merit review application notwithstanding an opportunity to do so while the Tribunal was seeking to find more information on the matter.
The Tribunal is satisfied that it gave every opportunity to both the applicants and the applicant’s representative to provide the evidence that may assist the application. The Tribunal did not find the evidence provided by the parties as being credible in this regard noting that no evidence was provided regarding a contract of employment for the nominee or any evidence of labour market testing, noting also, that the applicant’s representative had stated that labour market testing was not done in this matter “due to the urgency of employment”.
On that basis the Tribunal finds that labour market testing was not done for this position on the timelines necessary to establish that in fact it was ever done in this regard and therefore finds that the applicant has not met the requirements for labour market testing in accordance with the appropriate legislative instrument as outlined below. The Tribunal also has considered and finds that the assertions of “natural justice” asserted by the applicant’s representative were not argued in a credible manner.
Labour Market Testing
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 s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
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 IMMI: LIN 18/036. In addition:
·the nomination must be accompanied by the evidence specified in s.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.
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 IMMI: LIN – 18/036 that includes the following requirements:
“8 The advertisement of a nominated position
(1) This section is made under subsection 140GBA(5) of the Act.
Language
(2) For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, 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) For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, the nominated position must be advertised in at least two advertisements that are commissioned or authorised by the approved sponsor and which meet the requirements of this section:
(a) on a recruitment website with national reach in Australia; or
(b) in print media with national reach in Australia; or
(c) on radio with national reach in Australia; or
(d) if the approved sponsor is an accredited sponsor - on the approved sponsor’s website.
(4) The following details of the position must all be included in the advertisement:
(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) For the purposes of paragraph 140GBA(3)(aa) and subsection 140GBA(6) of the Act, applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published for any of the following:
(a) print media;
(b) radio;
(c) website.”
As noted above the Tribunal is not satisfied that the applicant has undertaken ‘labour market testing’ in accordance with LIN 18/036 that applied specifically at the time of engagement of the nominee, and that evidence was not provided that the position of motor mechanic was advertised for four-week periods at the appropriate time during the actual assessment and engagement of the nominee, on appropriate national job portals which the Tribunal accepts are national distributed print media that satisfies the expressed criteria.
The Tribunal notes that during different times throughout the years since his business has been in operation that some advertising via national job portals was done as noted above but also finds as stated that it is not satisfied that such labour market testing was carried out during the time necessary during the employment process for this nominee and that that has been acknowledged by the applicant’s representative.
For these reasons, the labour market testing requirements in s.140GBA are not met.
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
The Tribunal affirms the decision not to approve the nomination.
Stephen Witts
MemberATTACHMENT - 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)…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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