Architecture Design Studio (NSW) Pty Ltd (Migration)
[2024] AATA 636
•14 March 2024
Architecture Design Studio (NSW) Pty Ltd (Migration) [2024] AATA 636 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Architecture Design Studio (NSW) Pty Ltd
REPRESENTATIVE: Ms Marsha Bassily
CASE NUMBER: 2115605
HOME AFFAIRS REFERENCE(S): BCC2021/1751276
MEMBER:Karen McNamara
DATE:14 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 14 March 2024 at 2:13pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Construction Project Manager – genuine position – no response to s.359 invitation – absence of updated and current information about the nominated position – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363, 363AMigration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18STATEMENT 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 14 October 2021, to refuse to approve the application by Architecture Design Studio (NSW) Pty Ltd (the applicant) for nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
On 9 September 2021, the applicant lodged an application for nomination for the occupation Construction Project Manager (ANZSCO 133111) be undertaken by Sherin Mohammed Abdelrahman Fekry. 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 Medium-term stream with the proposed period of employment up to 4 years.
The Tribunal has before it the Department file containing all information before the delegate at the time of their decision.
Information contained on the Department file, shows on 14 October 2021 the delegate refused the application on the basis the applicant’s nomination did not satisfy r.2.72(10)(a) of the Regulations because the delegate was not satisfied that the position associated with the occupation is genuine.
The applicant lodged an application for review with the Tribunal on 2 November 2021. No supporting information accompanied the review application.
On 25 January 2024, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, (dispatched by email to the authorised recipient/representative), inviting the applicant to provide updated and current information demonstrating that the applicant met all the relevant s.140GB and r.2.72 criteria. The Tribunal provided detailed examples of the kind of information that would assist it. The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.2.72 and s.140GB are met at the time of its decision.
The invitation was sent to the authorised recipient/representative at the last email address provided in connection with the review. The invitation advised that, if the information was not provided in writing by 8 February 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
On 7 February 2024, the authorised recipient/representative advised the Tribunal via email, that they had undertaken numerous attempts to obtain instructions from the applicant, however they had not yet received any instructions.
On 4 March 2024, the authorised recipient/representative advised the Tribunal via email, that they had still not received any instruction from the applicant to act on this matter and therefore “understand we no longer act”.
As at the time of this decision, the Tribunal has received no response from the applicant or an authorised representative of the applicant, to the Tribunal’s invitation of 25 January 2024 to provide information, nor has the applicant provided information within the prescribed period and no extensions have been requested or granted.
Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information (subsection 359C(1) of the Act) and pursuant to s.360(3) of the Act, the review 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.
Accordingly, as the applicant failed to provide the information requested within the prescribed period, the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.
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 the applicant additional time in which to provide evidence to support its application for review.
In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the relevant requirements under r.2.72 of the Regulations and s.140GB of the Act, is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.
The Tribunal is satisfied that the invitation to provide information was sent to the authorised recipient at the correct email address as provided to the Tribunal. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made contact with the Tribunal to indicate that the information is forthcoming.
The Tribunal has had regard to the fact that the application was refused by the Department on 14 October 2021. The Tribunal therefore observes that the applicant has been aware for almost two and a half years of the reasons for the nomination refusal. Since lodging the review application, the applicant has not engaged with the Tribunal or provided information in support of their review application. Nor has the applicant sought an extension of time within which to respond to the Tribunal’s request for information or provided reasons for lack of response.
The Tribunal has also taken into account the fact that the implications of not providing the information requested in the Tribunal’s invitation, were set out in the letter of 25 January 2024. Further the Tribunal notes the representative’s advice that numerous attempts were undertaken to seek instruction from the applicant and that the applicant to date has not provided instruction to the representative.
In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant, or to exercise its discretion under s.363(1)(b) to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements in reg 2.72: s 140GB(2).
In the circumstances, the Tribunal has decided to proceed to make its decision on the available evidence.
The applicant was represented in relation to the review.
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). 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.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. The intention of reg 2.72(10)(a) is to ensure that positions nominated under this provision are in skilled occupations and are genuinely needed by the nominating employer.[1]
[1] Explanatory Statement to SLI 2013, No 146, Attachment B, p.34.
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.
The Tribunal considers that r. 2.72(10)(a) is a determination of not only whether or not, the position in question is genuine in the sense that the position exists, but also whether the position is really what it purports to be. In terms of the latter, the Courts have confirmed that the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor.[2]
[2] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34] In Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court 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.
The Tribunal further considers, there is no single test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering the qualitative assessment (as per Cargo), the particular facts and circumstances of the matter and the actual tasks and duties performed and described as the nominated occupation.
In this case, the nominated position is for Construction Project Manager (ANZSCO 133111). Information before the Tribunal shows that the delegate identified that the nominee is related to the Director of the business. Having afforded consideration to the entirety of the evidence before them, the delegate formed the view that the primary purpose of nominating the position is to facilitate a visa for the nominee, rather than to fill a genuine vacancy or skill shortage. The delegate therefore found that the position associated with the nominated occupation was not genuine and therefore the applicant did not satisfy r 2.72(10)(a).
The Tribunal’s letter to the applicant dated 25 January 2024, invited the applicant to provide updated and current information about all the relevant requirements in r.2.72 and s.140GB. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all the relevant criteria are met at the time of its decision.
The Tribunal invited the applicant to provide updated and current information about a range of matters, including the role and duties of the nominated position, how they correspond to the tasks in ANZSCO, where the nominated position sits within the organisation structure of the business and the current financial circumstances of the applicant. As noted previously in this decision, no response has been received to the Tribunal’s invitation to provide information.
In the absence of updated and current information about the nominated position, including the role and associated tasks of the position, the structure of the business and the financial circumstances of the applicant, the Tribunal is unable to be satisfied at the time of its decision, that the position associated with the nominated occupation is genuine. Accordingly, the requirements in r.2.72(10)(a) are not met and therefore the application does not satisfy the requirements of r.2.72(10).
Further, the Tribunal requested updated and current information relevant to the requirements of r.2.72 that are also required to be satisfied for the nomination to be approved. In the absence of updated and current information as to these requirements, the Tribunal is also unable to be satisfied that all the requirements of r.2.72 are met as required.
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.
Karen McNamara
MemberATTACHMENT - 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)…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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