1421131 (Migration)

1421131 (Migration) [2015] AATA 3576 (29 October 2015)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  LH Aust Pty Ltd ATF LH Aust Unit Trust
CASE NUMBER:  1421131
DIBP REFERENCE(S):  BCC2014/2505265
MEMBER:Karen Synon
DATE:29 October 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 29 October 2015 at 3:03pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 December 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 1 October 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the 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. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because s/he was not satisfied that the position associated with the nominated occupation was genuine.
The applicant applied for review of the primary decision on 23 December 2014 and provided a copy of the department’s decision to the Tribunal.
The applicant was represented in relation to the review by its registered migration agent.
The Tribunal wrote to the applicant via its representative on 24 December 2014 acknowledging the lodgement of the applicant for review. In this letter the Tribunal advised “[i]f you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible”. No substantive information has been received from the applicant since the time it lodged the application for review.
On 15 July 2015 the Tribunal wrote to the applicant in accordance with s.359(2) of the Act, inviting it to provide the following information in writing:
Information which demonstrates that the nomination meets all of the requirements of Regulation 2.27. This includes but is not limited to the requirement(s) which the Department’s delegate found was not satisfied.
The invitation was sent to the applicant via its nominated authorised recipient’s (also its registered migration agent) email address which had been provided in connection with the review. The applicant was advised that if the information was not provided in writing by 29 July 2015, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provide the information within the prescribed period and no extension was requested or granted.
However, at 1.49pm on 30 July 2015, that is after the prescribed time for providing the invited information had passed, the following email was received:
We note your request to provide further documents in support of our client’s application for review.
Our client will not be providing any further documents for the following reasons:
1) Our client has provided several documents in support of the application which were attached at the time of application.
2) The case officer requested several further documents which were provided.
3) We submit that ample documentation has already been provided to support our client’s application.
4) Our client has endured significant expense associated with the lodgement of two nomination applications and this application for review. It is not commercially viable for the business to continue to comply with demands to provide ever more documents, as the expenses involved with this process outweigh the benefit which may be derived from the recruitment of the nominee.
Further, we say that the documentary evidence provided with the application is strong, cogent and compliant with the relevant provisions of the Migration Regulations 1994, and accordingly we respectfully request that that the Tribunal consider making a decision in favour of our client on this basis.
In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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 is satisfied that it has communicated with the applicant via its authorised recipient at the representative’s advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the information. In making this decision the Tribunal notes that the applicant has not provided any substantive materials, written arguments or information since the lodgment of the application for review on 23 December 2014. Further, the Tribunal notes the advice of the representative, as detailed above, that “our client will not be providing further documents in support of our client’s application for review”.
For the following reasons, the Tribunal has decided affirm the decision under review to refuse the 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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
In the nomination application lodged on 1 October 2014, the applicant nominated the position of ‘Accountant (General)’. With the application, the applicant provided an Employment Agreement dated 28 May 2014 and a Job Description for the position of Accountant which outlined the duties and responsibilities of the position.
The applicant lodged the application for review on 23 December 2014 but has not provided any submissions or further evidence to the Tribunal since that date, including anything addressing the concerns raised by the delegate.
In this respect the Tribunal observes that the delegate noted:
Information provided with the most recent Standard business sponsorship application (lodged 30 May 2014) indicates that the business’s (sic) recent turnover was approximately $1,167,652 while employing 6 staff. However, the organisational chart submitted with the nomination application indicates that there are 7 staff currently employed by the business. Furthermore there was also a projection of the 5 additional staff, including positions for 2 full-time Accountants despite their already being a Senior Accountant currently employed by them. Again, the duty statement provided by the applicant indicates that the business is expanding its operations and wishes to encompass cost-effective accounting services on a consultancy basis. Given that the primary business is to provide IT associated services and that there are diversifying into providing Accounting consultancy services, do not find a credible that, based on information provided on the size of the business, that there is a genuine need for an additional Accountant within the operations of the business.
The Tribunal notes that the material relating the position appears to have been provided to the Department over 10 months ago and that although an Employment Agreement, Job Description and organisational chart were provided to the Department, this material is now substantially out of date. In particular the Tribunal notes that the employment agreement provided to the Department was dated 28 May 2014; over 16 months ago. The applicant has not provided to the Tribunal any recent information about the need for the position or the genuineness of the position, such as information about the duties of the position and how the position fits within the size and nature of the business. This is despite the delegate specifically finding that the position is not necessary to the operation of the business of the applicant.
The applicant did not respond, within the prescribed period, to the Tribunal's letter of 15 July 2015 inviting it to provide information which demonstrates that the nomination meets all the requirements of Regulations 2.72 including the genuineness of the position: r.2.72(10)(f). Indeed advice received after the prescribed period specifically advised that the applicant would not be providing any further documents.
The Tribunal notes the applicant’s representative’s advice that “ample documentation had already been prodded to support [the] application” and that “the documentary evidence provided with the application is strong, cogent and compliant with the relevant provisions of the Migration Regulations 1994”.
The Tribunal has considered all the information available to it but does not consider it to sufficient to satisfy the Tribunal that the position is genuine. As no additional information has been provided to the Tribunal and because the applicant has lost its entitlement to a hearing and the Tribunal was therefore not able to take oral evidence from it regarding the genuineness of the position or why the applicant believes the position associated with the nominated occupation is genuine, the Tribunal only has limited information before it.
At the time of decision, the Tribunal is not satisfied that there is sufficient recent evidence about the nature of the position or the operations of the applicant. On the limited evidence before it, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
The Tribunal must approve the nomination if all of the applicable requirements in r.2.72 have been met: s.140GB(2). The Tribunal has found that the applicant does not meet r.2.72(10)(f). As the provisions of r.2.72 are cumulative and the applicant is required to meet all relevant subparagraphs, it follows that it is not necessary for the Tribunal consider all of the prescribed the criteria of r.2.72.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the all 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.
Karen Synon
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)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.
Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2015] AATA 3576

29 October 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice