Blue Glass Pebble Company Pty Ltd (Migration)

[2024] AATA 677

Blue Glass Pebble Company Pty Ltd (Migration) [2024] AATA 677 (19 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Blue Glass Pebble Company Pty Ltd

CASE NUMBER:  2100607

HOME AFFAIRS REFERENCE(S):          BCC2020/583285

MEMBER:K. Chapman

DATE:19 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 19 January 2024 at 3:51pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Production Manager (Manufacturing) – swimming pool interior finishes – genuine position – hearing invitation declined – decision on the papers – tasks of the position does not align with ANZSCO description – 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

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 12 January 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, Blue Glass Pebble Company Pty Ltd, applied for approval on 26 February 2020. The applicant nominated Mr Lee Gibson (‘the nominee’) in the occupation of Production Manager (Manufacturing), which is coded number 133512 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant’s business operations involve the supply of swimming pool interior finishes.

3. 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 Short-term stream.

4. 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 19 January 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.

5. On 11 August 2023, 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 reg 2.72 of the Regulations and s 140GB of the Act. In response, the applicant submitted material including, but not limited to, market salary information, an employment contract pertaining to the nominee, ASIC records, an organisational chart, a standard business sponsorship approval notice, a position description and financial reports. The Tribunal has duly considered all material received.

6. The Tribunal initially scheduled a review hearing for 5 December 2023. However, on 15 November 2023 the applicant, through its Director Mr Chris Nicholls, wrote to the Tribunal declining the offer to attend a review hearing. His correspondence included the following passage:

   “Over the past week we have sought new legal advice, as our old lawyers are no longer in operation. Based on this new advice, we have regretfully been told to anticipate little chance of success. In their words it would be a waste of time and money. Accordingly, can we please decline the offer of the hearing from your email of 8 November…”

7. Having regard to the correspondence of the applicant, the Tribunal cancelled the scheduled review hearing. In the prevailing circumstances, the Tribunal has made a decision on the documentary material before it. That is, the Tribunal has determined this matter ‘on the papers.’

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Position must be genuine and full-time

10. 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.

11. The applicant has nominated the occupation of Production Manager (Manufacturing) (ANZSCO 133512) to be performed by the nominee.  According to the ANZSCO, the nominated occupation is a Skill Level 1 occupation. The ANZSCO provides an indicative list of tasks that a person fulfilling this role would usually perform. These are referred to in the Departmental delegate’s nomination refusal decision, a copy of which was provided by the applicant to the Tribunal.

12. In determining whether the position which the applicant seeks to fill can genuinely be described as a Production Manager (Manufacturing), the Tribunal has had regard to the description and tasks of the occupation as set out in the ANZSCO. Additionally, the Tribunal has carefully considered the submitted material including, but not limited to, market salary information, an employment contract pertaining to the nominee, ASIC records, an organisational chart, a standard business sponsorship approval notice, the position description and financial reports.

13. It is apparent from the documentary material that the applicant operates a successful business supplying swimming pool interior finishes. It is also clear that the nominee is employed by the applicant and is considered to be a valuable employee. However, the Tribunal notes that the applicant has a small staffing complement of five people, including its two Directors. The scale of the applicant’s business operations tends to cast doubt upon whether the nominee’s position is that of a Production Manager (Manufacturing). As the applicant declined the offer to attend a review hearing, the Tribunal is unable to further canvass the particulars of the nominee’s position with them.

14. Following careful consideration of the available evidence, the Tribunal is not satisfied that the tasks of the position align with the nominated occupation of Production Manager (Manufacturing), as outlined in the ANZSCO. Nor is the Tribunal satisfied that the position is consistent with the nature and scale of the applicant’s business operations. Whilst the Tribunal accepts that the nominee is a valued employee of the applicant, it cannot be satisfied that the nominated position is that of a Production Manager (Manufacturing) (ANZSCO 133512), having regard to the material before it. This view is buttressed by the contents of the email dated 15 November 2023 from the applicant.

15. 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. Given this finding, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved, as the requirements of reg 2.72(10) are not met.

16. For the reasons outlined 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

17. 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)…