Aerocare Flight Support (Migration)

[2019] AATA 531

Aerocare Flight Support (Migration) [2019] AATA 531 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Aerocare Flight Support Pty Ltd

CASE NUMBER:  1718256

HOME AFFAIRS REFERENCE(S):           BCC2016/3507868

MEMBER:K. Chapman

DATE:14 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 14 March 2019 at 4:32pm

CATCHWORDS
MIGRATION –  nomination – subclass 457 – Air Transport Professionals – nominated occupation and 6-digit code not specified in instrument IMMI 17/060 – non-attendance at hearing – not a standard business sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 140GB, 140GBA, 359(2), 363(1)(b)

Migration Regulations 1994, Schedule 2, r 2.72

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Immigration and Border Protection on 27 July 2017 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 21 October 2016. The applicant nominated Mr Vijayandran Reddy (‘the nominee’) in the occupation of Air Transport Professionals nec (not elsewhere classified). This occupation is coded as number 231199 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’).

3. 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 nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(aa) due to a lack of satisfaction that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060. On 16 August 2017, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.

5. On 8 January 2019, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. The applicant, through their appointed representative, requested extensions of time to respond to the Tribunal’s invitation on 21 January 2019, 5 February 2019 and 19 February 2019. The Tribunal granted extensions of time in response to these requests, setting an ultimate due date for response of 12:30pm on Wednesday 13 March 2019 to coincide with the scheduled review hearing.

6. The Tribunal notes that in the various requests for the aforementioned extensions of time, the applicant provided some information concerning it being acquired by another entity, Swissport International, and the applicant requiring further time to consider its business needs so as to explore options for the nominee’s employment. On balance, the Tribunal considers that the applicant provided a response to its invitation pursuant to s.359(2) of the Act dated 8 January 2019, albeit in a limited form. The information provided to the Tribunal has been duly considered.

7. On 21 February 2019, the Tribunal invited the applicant, through its appointed representative, to appear at a review hearing scheduled for 13 March 2019. A Tribunal Officer spoke with the representative by telephone on 28 February 2019 to ascertain who would appear for the applicant company at the scheduled review hearing. On 10 March 2019, the representative indicated Mr Greg Shelley of the applicant company was not available to attend the scheduled review hearing due to work commitments. On 11 March 2019, the Tribunal wrote to the applicant requesting that Mr Shelley provide a Statutory Declaration outlining the reasons he is unavailable for the hearing, that he still nominated the nominee for the nominated position, and providing times that he is available to attend a hearing, in order for the Tribunal to consider the request for adjournment further.

8. On 12 March 2019, the Tribunal received an email from the representative including correspondence from Mr Shelley as follows:

   “Unfortunately I do not believe that I will be able to provide the correspondence you are seeking. As we are now part of a global company, you must understand that my reporting requirements extend to our corporate HQ in Zurich and I do not unilaterally have authorisation to complete such an undertaking. I am sorry, however to satisfy this need, I must respectfully advise that I cannot provide the declaration as requested. Apologies in advance,
   Greg
   Greg Shelley
   General Manager Employee Relations”

9. Following receipt of the aforementioned correspondence, on 12 March 2019 the Tribunal wrote to the applicant advising that it had not agreed to grant the adjournment in the circumstances. The Tribunal did not grant the adjournment given the nature of the substantive issue before it, the content of Mr Shelley’s most recent correspondence where he indicated uncertainty as to continuing to nominate the nominee for the nominated position, the lack of any explanation from Mr Shelley as to why he was unavailable to attend the scheduled review hearing, and upon consideration of the chronology of the review.

10. On 13 March 2019, no person appeared on behalf of the applicant at the scheduled review hearing. The Tribunal is satisfied that the applicant was properly notified of the review hearing and additionally was properly advised of the refusal of the adjournment request. No satisfactory explanation has been received by the Tribunal for the non-attendance of the applicant and the representative at the scheduled review hearing. Given that the applicant was invited to appear before the Tribunal in accordance with the statutory requirements, and failed to do so, the Tribunal may make a decision on the material before it without inviting the applicant to attend another review hearing.

11. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow them additional time in which to provide evidence to support their application for review. The Tribunal has taken into account that the applicant has been aware since 27 June 2017 of the nomination refusal decision and that no satisfactory explanation has been provided for their non-attendance at the scheduled review hearing. Further, given the nature of the substantive issue before it, the content of Mr Shelley’s most recent correspondence where he indicated uncertainty as to continuing to nominate the nominee for the nominated position and upon consideration of the chronology of the review, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review.

12. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that they meet the relevant criteria in s.140GB of the Act and r.2.72 of the Regulations. This matter has therefore been determined on the evidence available to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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). In addition, for nominations made from 23 November 2013, s.140GBA must be met.

    Specified occupation

15. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060 and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

16. The applicant nominated the nominee in the occupation of Air Transport Professionals nec (not elsewhere classified) (ANZSCO Code 231199). In the nomination refusal decision, the delegate indicated that the aforementioned occupation does not correspond to an occupation specified in Instrument IMMI 17/060.

17. There is no evidence before the Tribunal to suggest that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060. Therefore, the Tribunal is not satisfied that the nominated occupation of Air Transport Professionals nec (ANZSCO code 231199) corresponds to an occupation and 6-digit code specified in instrument IMMI 17/060. Accordingly, the Tribunal finds that the requirements of r.2.72(10)(aa) are not met.

    Position must be genuine

18. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This 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.

19. The Tribunal notes the correspondence from Mr Greg Shelley of 12 March 2019 indicates that the applicant company is not currently in a position to confirm their nomination of the nominee in the position associated with the nominated occupation. Further, there is a dearth of contemporary evidence before the Tribunal to suggest that the applicant plans to engage the nominee in the position associated with the nominated occupation.

20. Following careful consideration, on balance, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine given the lack of persuasive evidence submitted by the applicant in this regard. Indeed, the Tribunal is not satisfied that the applicant continues to lawfully operate a business genuinely requiring the nominated occupation given the paucity of contemporary evidence before it. Therefore, the Tribunal finds that the requirements of r.2.72(10)(f) are not met.

    Standard Business Sponsorship

21. There is no evidence before the Tribunal to indicate that the applicant is a standard business sponsor or a party to a work agreement. The Tribunal notes that the applicant was provided with the opportunity to provide information concerning these matters in its invitation of 8 January 2019 (and associated grants of extensions of time), issued pursuant to subsection 359(2) of the Act, but failed to do so. Accordingly, the Tribunal is not satisfied that the applicant is a standard business sponsor or a party to a work agreement. Therefore, the requirements of r.2.72(4) are not met.

22. 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

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

    K. Chapman
    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)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (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 the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; 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.