Adroitt Group Pty Ltd (Migration) - [2024] AATA 643

Adroitt Group Pty Ltd (Migration) [2024] AATA 643 (13 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Adroitt Group Pty Ltd
REPRESENTATIVE:  Mrs Alexandra Oliver (MARN: 1790427)
CASE NUMBER:  2104464
HOME AFFAIRS REFERENCE(S):          BCC2021/332487
MEMBER:P. Maishman
DATE:13 March 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 13 March 2024 at 3:19pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Advertising Specialist – genuine position – financial capacity to support the position – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 360
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 19 March 2021 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 7 March 2021. 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 Advertising Specialist (ANZSCO 225111) 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 the position associated with the occupation is genuine.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Departments file.
The applicant gave the Tribunal a copy of the delegates decision with its application for review. The Tribunal received substantially more documents supporting the application than were provided to the Department.
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…

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 Adroitt Group Pty Ltd (Migration)

Details

AGLC: Adroitt Group Pty Ltd (Migration) [2024] AATA 643
Case: [2024] AATA 643
Decision Date: 13 March 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Adroitt Group Pty Ltd's nomination of a position for a Subclass 482 visa. The dispute centred on whether the nominated position of Advertising Specialist met the criteria for approval under the Migration Regulations 1994.

The Tribunal was required to determine if Adroitt Group Pty Ltd, as the nominator, satisfied all the relevant legislative requirements for the approval of the nominated position. This included assessing whether the nomination complied with the prescribed process, whether there was any adverse information known to Immigration, if the nominator was a standard business sponsor, and if any debts had been paid. Additionally, the Tribunal considered specific criteria relating to the nominee's visa status and the nominated occupation's alignment with the Short-term stream requirements.

The Tribunal found that Adroitt Group Pty Ltd had met all the applicable criteria. It was satisfied that the nomination was made in accordance with the prescribed process, including the use of the approved form, payment of the training contribution charge, and proper identification of the nominee and occupation details. The Tribunal noted the absence of adverse information and confirmed the applicant's status as a standard business sponsor. Furthermore, the nominated occupation, Advertising Specialist (ANZSCO 225111), was correctly identified as a short-term specified skilled occupation under the relevant instrument, LIN 19/048, and the nominee's circumstances meant that certain additional requirements, such as those for existing Subclass 457 or 482 visa holders, did not apply.

Consequently, the Tribunal set aside the original decision not to approve the nomination and substituted a decision approving 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 set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Departments file. The applicant gave the Tribunal a copy of the delegates decision with its application for review. The Tribunal received substantially more documents supporting the application than were provided to the Department. 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). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.The nomination must comply with the prescribed process Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73. The Tribunal has had regard to the material in the Department’s file and is satisfied that:·the applicant is nominating an occupation under s 140GB(1)(b) in relation to a proposed applicant for a Subclass 482 visa, as per reg 2.73(1);·the nomination was made using the approved form and fee, as per reg 2.73(3), (4) and (5);·the nomination was accompanied by the applicable training contribution charge, as required by reg 2.73(5A) of the Regulations; ·the nomination was made in the Short-term stream as the nominated occupation of Advertising Specialist is a short-term specified skilled occupation in the relevant instrument, LIN 19/048, as per reg 2.73(6);·the applicant identified the nominee, Mr Charrua De Almeida, in the nomination, as per reg 2.73(8);·the nomination included the name of the occupation and the corresponding 6-digit code, the location at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination, as per reg 2.73(9);·the nomination certified that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s 245AR(1) of the Act: reg 2.73(12);·the nomination included written certification that the employment contract with the nominee complied with Commonwealth, State or Territory employment laws, unless the occupation is exempt, as per reg 2.73(13); and·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for an Advertising Specialist (ANZSCO 225111), that the qualifications and experience of the nominee were commensurate with those specified for an Advertising Specialist (ANZSCO 225111), and that the position is in the applicant’s or an associated entity’s business: reg 2.73(14). For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(3) are met.No adverse information known to Immigration

Decision

Reasons for decision

For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.DECISION The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.P. MaishmanMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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)…

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(3) are met.No adverse information known to Immigration Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. There is no material before the Tribunal that shows there is adverse information (as defined) known to Immigration about the applicant or a person associated with the applicant. For these reasons the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The applicant is a standard business sponsor as evidenced by a copy of the Department’s notification of its approval as a standard business sponsor from 19 February 2021 effective until 19 February 2026. For these reasons the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no information before the Tribunal that the applicant has any outstanding debt under s 140ZO. For these reasons the requirements of reg 2.72(5A) are met.Requirements for existing Subclass 457 or Subclass 482 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14). The Department’s records show the applicant was previously the holder of a Subclass 462 visa and currently holds a Bridging Visa B since 7 March 2021 pending the outcome of his Subclass 482 visa application. As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.Specified occupation Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument. In this case, the relevant instrument is LIN 19/048 which specifies the occupation of Advertising Specialist (ANZSCO 225111) in the Short-term Skilled Occupation List. At the time of lodgement, the nominated occupation was subject to no inapplicability conditions.