Ace Reo Pty Ltd (Migration)

Ace Reo Pty Ltd (Migration) [2023] AATA 2882 (28 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ace Reo Pty Ltd
REPRESENTATIVE:  Mr Matthew James Luscombe (MARN: 0742007)
CASE NUMBER:  2001407
HOME AFFAIRS REFERENCE(S):          BCC2019/6316245
MEMBER:C. Packer
DATE:28 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 28 August 2023 at 3.26pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – network administrator – genuine position – no updated or current information about position or nominee provided to tribunal and no entitlement to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA, 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40
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 Home Affairs on 7 January 2020 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 27 November 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 Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
On 11 August 2023 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the applicant to provide updated and current information that addressed the requirements in r.2.72. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 25 August 2023 the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicant would lose any entitlement they 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. 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 a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without providing further time to provide information.
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 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).
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
In the application, the position was stated to be Network Administrator 263112 and the proposed period of employment was ‘Up to 2 years’. The responsibilities and main tasks were stated to be:
Responsibilities: maintain high levels of access, availability reliability and stability
of networked systems and infrastructure, Effective utilisation of
time to complete the tasks assigned, Maintaining work area and
housekeeping to the highest level, Maintaining a safe working
environment and comply with OHS standards
Main tasks: Work closely with management to implement IT initiatives,
assessing and recommending improvements to network
operations and integrated hardware, software, communications
and operating systems, Install and maintain hardware and
software. install, configure, test, maintain and administer
new and upgraded networks, software database applications,
servers and workstations, maintain high levels of access,
availability reliability and stability of networked systems and
infrastructure, documents diagnosis and resolution of faults,
providing specialist skills in supporting and troubleshooting
network problems and emergencies, manages user passwords,
security and inventory documentation, ensures the efficient
performance of company servers, printers and personal
computers, Develop training material and provide training to
staff, preparing and maintaining procedures and documentation
for network inventory, and recording diagnosis and resolution
of network faults, enhancements and modifications to networks, and
maintenance instructions
The details of the nominated position were stated to be a salary of $71,000pa for a 38 hour week. The nominee Tarun Kumar Grandhi had a ‘Full time employment contract’ signed on 25 November 2019 that showed the position was Network Administrator commencing on 25 November 2019. The Director’s letter of 29 December 2019 stated in part:
The position is a genuine full time position and aligns with the occupation of Network Administrator as it is described in the ANZSCO. …
As you will see from the staff list attached, we have in the past, to meet our requirements, employed a degree qualified international student as the Network Administrator. This situation has not been ideal and that is why we have now employed the nominee who has the education and the manufacturing sector work experience needed to meet our requirements.
A Staff list dated December 2019 then showed the nominee employed full-time as Network Administrator.
In the review, the Tribunal’s letter dated 13 July 2023 invited the applicant to provide information, including information concerning: the nominated position and about the business’s organisational structure and where the position associated with the nominated occupation sits in relation to that structure; the nominee’s annual earnings and the terms and conditions of employment. The applicant subsequently provided information on 27 and 28 July 2023 that largely concerned the business and business finances. No information about the nominee was provided.
On 11 August 2023 the Tribunal invited the applicant to provide updated and current information:
The Tribunal now requires updated and current information addressing these criteria.
Accordingly, and without limiting the information that may be given, you or another
person authorised by the applicant are invited to give the following information in
writing:
1. Information about the applicant’s current organisational structure, and that
shows the nominee’s position.
2. Information about the nominee’s employment.
[For example: Current employment agreement for the nominee Tarun Kumar
Grandhi; nominee’s PAYG Payment summaries for 2020fy, 2021fy, 2022fy,
2023fy; payslips; superannuation payments.]
[For example: If the nominee is not employed full-time under an employment
contract, information that explains why.]
3. Information that shows the nominee works as a Network Administrator 263112.
However, the applicant did not provide any information within the prescribed period.
In sum, the application ostensibly shows that the nominee had been employed full-time from 25 November 2019 as a Network Administrator pursuant to an employment contract on an annual salary of $71,000. However, there is no information before the Tribunal that shows the nominee was in fact employed full-time pursuant to an employment contract, or otherwise employed, from November 2019 to 2023. There is no information before the Tribunal that shows the nominee’s position within the applicant’s current organisational structure, or that the nominee has in fact worked as a Network Administrator since 2019, a period of more than three and a half years. The material before the Tribunal does not satisfy the Tribunal that the nominee would be employed as a Network Administrator pursuant to an employment contract for the period of a 482 visa.
In light of the foregoing discussion and the lack of information about the nominated position and the nominee since 2019, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
In light of the foregoing discussion and the lack of information about the nominated position and the nominee since 2019, the Tribunal is not satisfied that the position is full-time. The Tribunal considers it is not reasonable to disregard this requirement.
For these reasons the requirements of reg 2.72(10) are not met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister.
In light of the foregoing discussion and the lack of information about the nominated position and the nominee since 2019, the Tribunal is not satisfied that the nominee will be engaged only as an employee under a written contract of employment.
For these reasons the requirements of reg 2.72(11) are not met.
Conclusion
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.
C. Packer
Member

ATTACHMENT - 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)…

[2023] AATA 2882

28 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice