Australasian Hail Network Pty Ltd (Migration) - [2024] AATA 225

Australasian Hail Network Pty Ltd (Migration) [2024] AATA 225 (2 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Australasian Hail Network Pty Ltd
REPRESENTATIVE:  Mr Alasdair Colin Dougall
CASE NUMBER:  2102199
HOME AFFAIRS REFERENCE(S):          BCC2020/1383460
MEMBER:Karen McNamara
DATE:2 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 02 February 2024 at 4:34pm
CATCHWORDS
MIGRATION – nomination of a position – Medium-term stream – occupation of Accountant (General) – inapplicability condition – clerical, bookkeeper or accounting clerk position – tasks of the position correspond to nominated occupation – annual turnover – 10 permanent employees – position genuine and full-time – employment conditions no less favourable – recruitment website and other advertising – decision under review set aside
LEGISLATION
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, Schedule 2, cls 482.223, 482.232, 482.312; rr 1.03, 1.13, 2.57, 2.72, 2.73, 5.42
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 16 February 2021, to refuse to approve the application by Australasian Hail Network 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).
The applicant operates a motor vehicle hail repair business and states it is the largest contract repairer to the Suncorp Group. The head office is based in Kirrawee (Sydney) with regional locations throughout New South Wales, Queensland and Victoria. ASIC information shows the company was registered in 2004.
On 17 April 2020, the applicant lodged an application for nomination for the occupation Accountant (General) (ANZSCO 221111). 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 for a period of up to 4 years.
On 16 February 2021, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.2.72(8)(b) of the Regulations, because the delegate found that the nominated position is affected by an exception (caveat) specified in the relevant legislative instrument, and as a result the nominated occupation is not applicable to the nominee.
The applicant lodged an application for review with…

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 Australasian Hail Network Pty Ltd (Migration)

Details

AGLC: Australasian Hail Network Pty Ltd (Migration) [2024] AATA 225
Case: [2024] AATA 225
Decision Date: 2 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision by the Department of Home Affairs concerning the nomination of a position by Australasian Hail Network Pty Ltd for a Subclass 482 visa. The applicant sought approval for the nomination of an Accountant (General) position under the Medium-term stream. The core of the dispute revolved around whether the nominated position and the applicant's circumstances met the various regulatory requirements for such a nomination.

The Tribunal was required to determine if the applicant had complied with the prescribed nomination process under regulation 2.73, if there was any adverse information known to Immigration about the applicant or associated persons, if the applicant was a standard business sponsor, and if any debts under section 140ZO of the Act had been paid. Further issues included whether the nominated occupation and its code corresponded to the relevant legislative instrument, whether the position was genuine and full-time, and whether the employment conditions offered to the nominee were no less favourable than those for an Australian citizen or permanent resident performing equivalent work.

The Tribunal found that the applicant had complied with the procedural requirements of regulation 2.73, including the use of the approved form, payment of the training contribution charge, and the identification of the nominee and occupation details. It was satisfied that no adverse information was known to Immigration, that the applicant was a valid standard business sponsor, and that no relevant debts were outstanding. Crucially, the Tribunal determined that the nominated occupation of Accountant (General) was specified in the relevant instrument, that the position was genuine and full-time, and that the employment conditions offered were not less favourable than those for an Australian worker. The Tribunal also noted that specific requirements relating to previous visa holders did not apply as the nominee had not previously held a Subclass 457 or 482 visa.

Consequently, the Tribunal set aside the Department's 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 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 r.2.73(1).·the nomination was made using the approved form and fee, as per r.2.73(3),(4) and (5);·the nomination was accompanied by the applicable training contribution charge, as per r.2.73(5A). ·the nomination was made in the Medium-term stream as the nominated occupation of Accountant (General) (ANZSCO 221111) is a medium term specified skilled occupation in the relevant instrument, LIN 19/048, as per r.2.73(6);·the applicant identified the nominee Mr Nael Mustafa in the nomination, as per r.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, the annual turnover for the nominating business, as per r.2.73(9);·the nomination includes disclosure by the applicant to the effect 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: r.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 r.2.73(13); and·the nomination included written certification that the tasks of the position included a significant majority of the tasks specified for the occupation in ANZSCO; that the qualifications and experience of the nominee were commensurate with those specified for the occupation in ANZSCO, and that the position is in the applicant’s or an associated entity’s business: r.2.73(14). For these reasons, the Tribunal is satisfied that the requirements of r.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.

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.Karen McNamaraMemberATTACHMENT - 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 r.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 evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the nominator or an associated person. 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. Departmental records indicate that the applicant was approved as a standard business sponsor on 21 December 2019 to 21 December 2024, therefore the agreement is valid. The Tribunal is therefore satisfied that the applicant is a standard business sponsor. 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 evidence before the Tribunal that the applicant owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. For these reasons, the Tribunal finds that the requirements of r.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 indicate that the nominee, Mr Nael Mustafa has never held a Subclass 457 or 482 visa. 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.