Abs Groundworks Pty Ltd (Migration)

[2021] AATA 2400

Abs Groundworks Pty Ltd (Migration) [2021] AATA 2400 (13 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Abs Groundworks Pty Ltd

CASE NUMBER:  1903071

HOME AFFAIRS REFERENCE(S):          BCC2018/1088848

MEMBER:C. Packer

DATE:13 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 May 2021 at 2:25pm

CATCHWORDS
MIGRATION – nomination –position associated with the nominated occupation is not genuine – no pending application for a Subclass 457 (Temporary Work (Skilled)) visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140
Migration Regulations 1994, rr 2.72, 2.73

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 23 January 2019 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).

2. The applicant applied for approval on 7 March 2018. 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. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the delegate did not consider the position associated with the nominated occupation to be genuine, and so found the applicant did not satisfy paragraph 2.72(10)(f).

4. The applicant was invited to appear before the Tribunal on 13 May 2021 at 1pm. The invitation stated in part that:

   If you do not participate in the scheduled hearing (that is you do not answer your phone at the scheduled date and time), we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

5. The Tribunal’s phone call was not answered on the scheduled day and time. The applicant did not appear before the Tribunal on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 sponsor and meets the requirements in r.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, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

   Identification of the nominee

8. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

9. In a letter dated 19 October 2020 the Tribunal advised the applicant in part that:

   The particulars of the information are:

   • It is a requirement for approval of the nomination that you have identified the visa holder, applicant or proposed applicant for the visa who will work in the nominated occupation. This requirement is in r.2.72(5) of the Migration Regulations 1994 as it applies to your case.
   • A review of your file and Departmental records suggests that the person you identified does not hold a Subclass 457 (Temporary Work (Skilled)) visa and they do not have an application for a Subclass 457 (Temporary Work (Skilled)) that is yet to be decided by the Department of Home Affairs or the Tribunal.
   • The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018. As a result, the Subclass 457 visa program was repealed and closed to new applications from that date onwards.
   • The Subclass 482 (Temporary Skills Shortage) visa that commenced on 18 March 2018 is not compatible with a nomination application made before then, meaning that a Subclass 482 (Temporary Skills Shortage) visa holder cannot be relied upon to satisfy r.2.72(5) as it applies in your case.

10. The representative responded on 28 October 2020:

    Please be informed that we no longer act for this client and are not in a position to give instructions for this matter.

    Publicly available information would indicate that the company is presently under external administration. While we believe that we would not be in any position to advise on the instructions of the applicants, the information provided in the attachment may indicate to the Tribunal that the matter
    could be finalised in any case.

11. On 4 November 2020 the Tribunal emailed the former representative and indicated:

    Please be advised that we tried to contact the general manager, Mr James Douglas via email on [email protected] however we received a ‘return to sender’. Would you happen to have other contact details for him?

12. Subsequently, the Tribunal was able to contact the representative and she confirmed that they no longer represent their client and that they don't have any updated contact details the Tribunal can use. The Tribunal attempted to call the applicant but the phone is disconnected.

13. At the scheduled phone hearing on 13 May 2021 the Tribunal’s phone call was not answered. The Tribunal therefore proceeded to a decision based on the material before the Tribunal.

14. In the application the nominee was James Douglas. He also sought a review of a refused 457 visa (1805985). However, on 8 January 2020 the Tribunal advised him that his review had been dismissed for non-appearance at a scheduled hearing. Accordingly, there is no application for a Subclass 457 (Temporary Work (Skilled)) that is yet to be decided by the Department of Home Affairs or the Tribunal.

15. For these reasons the requirements of r.2.72(5) are not met.

16. 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

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

    C. Packer
    Member