1607794 (Migration) - [2016] AATA 4531

1607794 (Migration) [2016] AATA 4531 (24 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SHANDONG SHUNTIAN LAW FIRM
CASE NUMBER:  1607794
DIBP REFERENCE(S):  BCC2015/4058315, BCC2015/4106502
MEMBER:Katie Malyon
DATE:24 October 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 24 October 2016 at 4:26pm

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 18 May 2016 to refuse to approve a nomination made by overseas business sponsor Shandong Shuntian Law Firm (Shandong Law) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
Shandong Law applied for approval on 30 December 2015. 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 2.72(12) prescribe the criteria that must be satisfied for the Minister to approve a nomination. These criteria are extracted in the Attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA of the Act.
The delegate decided not to approve Shandong Law ‘s nomination for the occupation of Human Resources Manager on the basis that it did not satisfy 2.72(10)(c) of the Regulations because it did not demonstrate that the nominee will receive no less favourable terms and conditions than would be provided to an Australian citizen or permanent resident. As this criteria was not met, the delegate did not consider remaining criteria in r.2.72 of the Regulations.
The Managing Partner of Shandong Law, Mr Pifeng Liu, appeared before the Tribunal by teleconference on 24 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Ms Dandan Liu, who is also a Partner with Shandong Law. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether Shandong Law meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 of the Regulations and, for nomination applications made from 23 November 2013, s.140GBA of the Act have been met: s.140GB(2) of the Act.
In a statement lodged with the Tribunal prior to the hearing, Mr Liu informed the Tribunal that Shandong Law is the first Chinese law firm to establish a branch office in Victoria. Shandong Law plans to have 3 Australian-registered foreign lawyers work in its Melbourne office specialising in international trade, mergers and acquisitions as well as other areas of Chinese law. In due course, other staff would be employed.
Also lodged with the Tribunal prior to the hearing was a Supplementary Agreement made between…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1607794 (Migration)

Details

AGLC: 1607794 (Migration) [2016] AATA 4531
Case: [2016] AATA 4531
Decision Date: 24 October 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to refuse the nomination of Shandong Law. The core of the dispute revolved around whether Shandong Law met the criteria for approving its nomination under the Migration Regulations 1994. The Tribunal was tasked with determining if the applicable requirements, specifically r.2.72 of the Regulations and s.140GBA of the Act, had been satisfied.

The Tribunal was required to assess if Shandong Law had demonstrated a genuine need to employ a person in the nominated occupation of Human Resources Manager. This involved examining whether the proposed salary for the nominee, Ms. Liu, was consistent with the nominated role and whether the terms and conditions of employment offered were no less favourable than those provided to an Australian citizen or permanent resident for equivalent work. A key consideration was whether the position itself was genuine, as stipulated by r.2.72(10)(f) of the Regulations, and whether the nominated occupation's tasks were substantially reflected in the proposed role.

In its reasoning, the Tribunal noted that the initial nomination proposed an annual salary of $60,000 for Ms. Liu as a Human Resources Manager. However, subsequent evidence indicated her salary had been increased to $8,000 per month, equating to $96,000 annually. This revised salary aligned more closely with the weekly earnings of a Solicitor ($1,600 per week, or $83,200 per annum) as indicated by an updated Job Outlook, rather than the nominated occupation. The Tribunal found that Shandong Law had not adequately demonstrated a genuine need for a Human Resources Manager, particularly in light of the salary information and the focus on the nominee's remuneration being benchmarked against a Solicitor's pay. Consequently, the Tribunal was not satisfied that Shandong Law met the criteria for the nomination to be approved.

The Tribunal affirmed the decision under review to refuse the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether Shandong Law meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 of the Regulations and, for nomination applications made from 23 November 2013, s.140GBA of the Act have been met: s.140GB(2) of the Act. In a statement lodged with the Tribunal prior to the hearing, Mr Liu informed the Tribunal that Shandong Law is the first Chinese law firm to establish a branch office in Victoria. Shandong Law plans to have 3 Australian-registered foreign lawyers work in its Melbourne office specialising in international trade, mergers and acquisitions as well as other areas of Chinese law. In due course, other staff would be employed. Also lodged with the Tribunal prior to the hearing was a Supplementary Agreement made between Shandong Law and Ms Liu confirming her salary had been increased from $5,000 per month to $8,000 per month effective from 25 May 2016, that is, she will receive an annual salary of $96,000. An updated Job Outlook for Solicitors was also lodged and indicates that weekly earnings for a Solicitor are $1,600: this is equivalent to $83,200 per annum. As noted in the delegate’s decision, a copy of which was provided to the Tribunal together with the application for review, the annual salary proposed to be offered to Ms Liu in the nomination lodged with the Department for the position of Human Resources Manager was $60,000 per annum. It was on this basis that the delegate found Shandong Law had not demonstrated that the terms and conditions of employment of the nominee will be no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident for performing equivalent work at the same location and, accordingly, Shandong Law did not satisfy r. 2.72(10)(c) of the Regulations. Based on the Tribunal’s review of the job description for the nominee’s position as lodged with the Department and evidence provided to the Tribunal prior to the hearing that the nominee’s salary has been determined by reference to the salary offered to a Solicitor - rather than the nominated occupation of Human Resource Manager - the Tribunal focused its attention on whether Shandong Law has identified a genuine need to employ a person in the nominated occupation of Human Resource Manager. Position must be genuine Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The Tribunal observed at the hearing that all sponsors are required, in their nomination applications, to certify that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the Australian New Zealand Standard Classification of Occupations (ANZSCO) or instrument in writing: r.2.72(10)(e)(i) of the Regulations. It also noted that the ‘position’ refers to the job and the tasks proposed to be undertaken in the nominating business by the nominee, while the term ‘nominated occupation’ refers to the nominated occupation as described in ANZSCO.

Decision

Reasons for decision

On the basis of the 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.Katie MalyonMemberATTACHMENT Extracts from the Migration Regulations 19942.72 Criteria for approval of nomination — Subclass 457 (Temporary Work (Skilled)) visa(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.(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;(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.(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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.oOOo

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.