All About the Updated Labor Market Testing Instrument

Introduction

A new labor market testing tool, the Migration (labor market testing) Amendment Determination (LIN 22/064) 2022, will go into effect on July 4, 2022. The revised name of the Australian Government’s employment website, Workforce Australia, is reflected in this instrument, which modifies Migration (LIN 18/036: Period, mode, and proof of labor market testing) Instrument 2018. (previously job-active).

The revised tool will guarantee that labor market testing advertising may continue following the change from job-active to Workforce Australia. Prior to the change on July 4, 2022, job postings made by advertisers on job-active will be transferred to Workforce Australia.

Overview of the labor market testing

You need to demonstrate that there are no appropriate Australian workers available for various types of visas. You must assess the local labor market for these visas if a company nominates an international worker. In Australia, the position is typically advertised as part of the labor market testing (LMT) process. Depending on the stream you are nominating under, businesses will test the labor market in different ways at different times and want different types of proof.

Skilled Employer Sponsored Regional (Provisional) Visa (Subclass 494) Employer Sponsored Stream Labor Market Testing TSS Visa (Subclass 482) Short-Term Stream and Medium-Term Stream

When sponsors recommend a candidate, they are required to send a copy of the recruitment materials utilized to fill the post (that is, copies of all advertisements that meet the advertising requirements). For the majority of nominations, the position had to have been advertised for at least four weeks within the four months just before the nomination application was submitted.

The advertisement must have taken place since the date of the redundancy or retrenchment if an Australian citizen or permanent resident employee was laid off or retrenched from the nominated occupation during the four months prior to submitting the nomination application.

Note: The nomination must include providing details concerning these layoffs or retrenchments.

Additionally, all of the following prerequisites must be met in the job’s advertisement:

The following details were included in the English-language advertising that was published in Australia:

• The position’s name or a description
• The qualifications or background needed for the post
• The name of the authorized sponsor or the recruitment firm that the sponsor is utilizing
• If the position’s yearly profits are less than AUD96,400, the salary for the position will apply.
• Note that publishing a pay range is allowed (for example, AUD80,000 to AUD90,000).

Any of the following published at least 2 advertisements:

• On a well-known or expert recruitment website with a nationwide audience that posts job listings for vacancies across Australia
• An acceptable technique of LMT advertising is through sector-specific, relevant recruitment websites that are heavily used by the sector.
• A general classifieds website or a solely social media notification (like Twitter or Instagram) for an advertisement are unacceptable approaches. The online hiring tool provided by LinkedIn is suitable for LMT. Jobs that are solely available to LinkedIn profile holders are unacceptable for LMT purposes.
• Nationwide print media (that is, newspapers or magazines with national reach that are published at least monthly and marketed throughout Australia)
• A national radio station with a reach
• If the sponsor is a recognized sponsor, it will say so on the company website.
• Advertisements should have run for at least 4 weeks, including those on websites.
• For a minimum of four weeks, applications or expressions of interest must have been accepted for the advertised post.

Added criteria for nominations

For applications sponsored by employers, the Australian government adopted new labor market assessment requirements in September 2020. In addition to the two ads previously mentioned:

• The government’s Workforce Australia website must post an advertisement for the specified position.
• All the details that had to be in the other 2 commercials described above had to be included in the Workforce Australia advertisement.
• Advertisements for Workforce Australia should have aired for at least 4 weeks.
• For a minimum of four weeks, applications or expressions of interest must have been accepted for the advertised post.

Note: There is no necessity that the sponsor themselves post the advertisement; instead, a third party may have done so if given permission to do so by the sponsor (for instance, a related organization or a contractual party, such as a recruiting agency).

At the time the nomination is submitted, proof of a total of three advertisements, including one posted on the government’s Workforce website, must be offered.

Conclusion

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In this case, the Minister accepted that the applicant had fought for the LTTE since he was sixteen years of age for a period of ten years. The Minister also accepted that Australia owed the applicant in this case non-refoulement obligations.

The Minister further noted that the applicant had significant physical and mental health conditions, including that he was legally blind. The Minister also accepted that the applicant’s behaviour had improved in recent times and if released from detention, the applicant had potential to be rehabilitated. Nevertheless, the Minister expressed concerns about the risk of the applicant engaging in harmful behavior in the community.

The Minister concluded that there was still a risk that the applicant would represent a danger to the Australian community and personally refused his visa on character grounds under s 501(1).

The applicant was thus liable to be removed from Australia, however, as the applicant has a well-founded fear of persecution, as accepted by the Minister, he cannot be returned to his home country. This would subject the applicant to indefinite detention as he has no rights to enter any other country.

In his decision, Rares J describes the Minister’s reasoning as to granting the applicant another visa to avoid a breach of Australia’s non-refoulement obligations as akin to a “catch-22” as the Minister is unable to grant the applicant another visa due to s195A because the applicant had failed to meet the character test under s501 but is also unwilling to exercise his non-compellable power under s 48B.

At [49] – [50] Rares J further states:

It follows that the Minister’s reasons at [94]-[97], dealing with the possibility of the future grant of other visas, amounted to him taking into account an irrelevant consideration or constructively failing to exercise his power on a correct understanding of the law. The Minister had, but failed, to address squarely in his reasons that the inevitable consequence of his assessment of risk, if he were to refuse to grant the visa under s 501(1), was that the applicant would have to be refouled as soon as reasonably practicable in accordance with ss 197C and 198 because there was no reasonable basis on which the grant of any other visa could occur having regard to that assessment of risk. 

Refoulement of the applicant to Sri Lanka as soon as reasonably practicable, even though Australia owed him protection obligations, would be the, or a reasonable, legal and the immediate practical, consequence of a decision to refuse the visa. Contrary to what he said in [95] and [97], were he to have refused the visa, the Minister had no reasonable, available alternative to refoulement as soon as reasonably practicable, but to act in accordance with the requirements of ss 197C and 198. The Minister’s reasons at [94]-[97] were perfunctory and cursory. They did not amount to an active intellectual process that engaged at all with, let alone with the legal or practical consequence of, what his assessment of risk necessarily would entail, if he refused the visa, namely that he would have to refoule the applicant in breach of this country’s international obligations as reflected in s 36(1C).

That is, the Minister had not addressed the correct issue, being the legal or practical consequence of not granting the applicant a visa.

Rares J further noted that s 36(1C) applies to protection visa and that it is not a discretionary power. Under section 36(1C) a person is eligible to be granted a protection visa if he or she is not a person whom the Minister considers, upon objectively reasonable grounds, to be a danger to the Australian community on the basis that they have been convicted of a particularly serious crime. This is consistent with Art 33(2) of the Refugee Convention which prohibits refoulement unless a refugee is regarded a danger to the security of the country on reasonable grounds or has been convicted of a particularly serious crime and therefore constitutes a danger to the community of that country. Contrastingly s 501(6)(d)(v) provides that a person did not pass the s 501 character test if there is a risk that he or she would represent a danger to the, or a segment of the, Australian community. The character test under s 36(1C) is thus far more stringent than s 501.

A “particularly serious crime” is defined as one that:

• involves violence against a person; or
• is a serious drug offence; or
• involves serious damage to property; or
• is an offence relating to immigration detention

and is punishable by imprisonment for life, or a fixed term of not less than 3 years, or a maximum term of not less than 3 years. It does not matter whether the person was actually sentenced to 3 years, or to any term of imprisonment.

In analysing the Parliament’s intention when drafting s 36, Rares J observes that s 36 does not provide that an applicant for a protection visa who satisfies the criteria in s 36(1B), (1C) and (2) may be refused the visa under s 501(1). Rares J concludes that if s 36(1B) and (1C) could be overridden by the use of the general power in s 501(1), there would be no useful function for s 36 (1B) and (1C) which give statutory effect to Australia’s non-refoulement obligations under the Refugee convention. It is thus implied that the Minister can only act under s 36(1C) to assess if the applicant is a danger to the Australian community. The refusal of the applicant’s protection visa under s 501 by the Minister was thus found to be not in accordance with the law and was quashed. The Federal Court also ordered the Minister to make a decision on the application for a visa according to law.

It is important to note that this case relates to a decision to refuse a protection visa only. Whether or not s 501 can be used to cancel a protection visa that has already been granted is not clear at this time.