ASAC LK PTY LTD (Migration)

[2024] AATA 1060

ASAC LK PTY LTD (Migration) [2024] AATA 1060 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ASAC LK PTY LTD

REPRESENTATIVE:  Ms Jungmin Lee (MARN: 1279501)

CASE NUMBER:  2119872

HOME AFFAIRS REFERENCE(S):          BCC2020/2157047

MEMBER:K. Chapman

DATE:5 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 05 April 2024 at 4:41pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Chef – no response to s.359(2) invitation – Tribunal declined indefinite deferral of decision-making – specified occupation – inapplicability conditions – LIN 19/048 – limited service restaurant – genuine position – paucity of contemporary evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration 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 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 13 December 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’).

2. The applicant applied for approval on 24 August 2020. They sought to nominate the nominee in the occupation of Chef (ANZSCO 351311). 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 matter, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.

3. The delegate decided not to approve the nomination, due to a lack of satisfaction that the position associated with the nominated occupation is genuine. On 23 December 2021, 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.

4. On 25 January 2024, the Tribunal wrote to the applicant, pursuant to s 359(2) of the Act, inviting them to provide current information addressing the relevant criteria under reg 2.72 of the Regulations and s 140GB of the Act. The Tribunal is satisfied that this invitation was properly despatched to the email address of the applicant’s representative. The due date for response to this invitation was 8 February 2024. No response to the invitation, pursuant to s 359(2) of the Act, has been received by the Tribunal at the time of this decision.

5. Where an applicant is invited to provide further information in accordance with s 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 according to s 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, 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 the review applicant to appear before it, as outlined by the Full Federal Court in the matter of Hasran v MIAC [2010] FCAFC 40.

6. The Tribunal has carefully considered whether to afford additional time to the applicant to give the information requested in the s 359(2) invitation, or to provide further material in support of their 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.

7. The Tribunal has taken into account that the applicant has been aware since around                 13 December 2021 of the reasons for the nomination application being refused, and also that the implications of not providing the information requested in the invitation from the Tribunal of 25 January 2024 were set out in that correspondence. Additionally, the Tribunal notes that the applicant is represented.

8. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to give the information requested in the s 359(2) invitation and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the information requested in this invitation. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.

9. For the following reasons, the Tribunal has decided to affirm the decision under review not to approve the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present review 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.

    Specified occupation

11. 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 be applicable to the nominee in accordance with this instrument.

12. The applicant nominated the occupation of Chef (ANZSCO 351311). This occupation is subject to inapplicability conditions (or ‘caveats’). In accordance with Instrument LIN 19/048, they are: 

    ·     Item 7 – the position is involved in mass production in a factory setting; and

    ·     Item 8 – the position is in a limited service restaurant.

13. There is a dearth of contemporary information before the Tribunal regarding the operations of the applicant’s business and its requirement to employ a Chef. This is particularly so, as the applicant failed to respond to the Tribunal’s invitation pursuant to s 359(2) of the Act. On balance, the Tribunal cannot be satisfied that the nominated position is based in other than a limited service restaurant.

14. Accordingly, the Tribunal finds that the applicant does not satisfy reg 2.72(8).

    Position must be genuine and full-time

15. 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.

16. The applicant nominated the occupation of Chef (ANZSCO 351311). The ANZSCO provides an indicative list of tasks that a person fulfilling this role would usually perform. The Tribunal has carefully considered the nature of the applicant’s commercial activities, its size and financial position as depicted by the material it submitted to the Department. The Tribunal notes that the applicant failed to respond to its invitation, issued pursuant to s 359(2) of the Act, and accordingly there is a paucity of contemporary evidence regarding the current commercial activities of the applicant.

17. Following careful consideration of the available evidence, the Tribunal is not satisfied, at the time of this decision, that the nominee’s position is still available in the applicant’s business. Accordingly, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. The Tribunal therefore finds that the requirements of reg 2.72(10)(a) are not met.

18. Further, the Tribunal cannot be satisfied that the position is a full time one, or that it is reasonable to disregard this requirement. This is because of the lack of contemporary evidence before it on this topic. The Tribunal therefore finds that the requirements of reg 2.72(10)(b) are not met.

19. For these reasons, the Tribunal finds that the requirements of reg 2.72(10) are not satisfied by the applicant.

    CONCLUSION

20. 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

21. 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 (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)…