Cambodian Buddhist Association of Victoria Inc (Migration)
[2025] ARTA 330
•18 March 2025
CAMBODIAN BUDDHIST ASSOCIATION OF VICTORIA INC (MIGRATION) [2025] ARTA 330 (18 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Cambodian Buddhist Association of Victoria Inc
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2212658
Tribunal:Peter Emmerton
Place:Adelaide
Date: 18 March 2025
Decision:The Tribunal affirms the decision not to approve the nomination.
Statement made on 18 March 2025 at 4:06pm
CATCHWORDS
MIGRATION – nomination – not an approved standard business sponsor – did not hold an approved Labour Agreement – requirements of reg 2.72 are not met – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 140
Migration Regulations 1994, rr 2.72, 2.73STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to approve a nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72(5) of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval of the nomination on 30 December 2021. 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 494 visa in Skilled Employer Sponsored Regional (Provisional) (subclass 494) visa class. 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 494 visa in the Skilled Employer Sponsored Regional (Provisional) visa class.
The delegate decided not to approve the nomination on the basis that they were not satisfied the applicant met the requirements of 2.72(5) as they are not a Standard Business Sponsor, (SBS) nor do they hold an approved Labour Agreement.
The applicant, represented by Mr Meng Bunlay and the witnesses appeared before the Tribunal via Teams video on 17 March 2025 in an agreed joint hearing with the visa applicant Mr Bora Khuon, ART case reference 2213737, to give evidence and present arguments. The Tribunal received oral evidence from Venerable Ol Sam, and Mr Sarun Keo.
The applicant was represented in relation to the review.
The Tribunal hearing was conducted with the assistance of an interpreter fluent in the Khmer and English languages.
For the following reasons, the Tribunal concludes decision the under review should be affirmed.
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.
Nominator is a standard business sponsor - (SBS)
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The Tribunal notes a Procedural Fairness letter was sent by the Department to the applicant on 8 July 2022 which remained unanswered at the time the delegate made their decision on 8 August 2022. In that letter they asked for comment on the fact they were not an approved standard business sponsor, (SBS) and they did not hold an approved Labour Agreement.
No definitive explanation was given under questioning at the hearing as to why this communication was ignored but the representative assumed it was a result of the recent refusal received shortly prior to the letter and there was nothing further to say. The Tribunal accepted this as a reasonable likelihood.
Departmental records show conclusively the applicant is not an approved standard business sponsor, (SBS). The records also show they do not hold an approved Labour Agreement. This was acknowledged in the pre-hearing submissions. When questioned at the hearing the nominator agreed that they were not currently an approved standard business sponsor, (SBS), nor do they currently hold an approved Labour Agreement.
It was explained to the Tribunal both prior to the hearing and at the hearing the Department had refused 3 Labour Agreement applications undertaken by the organisation so they could sponsor the visa applicant on a permanent visa. It was also stated that the visa applicant had received several temporary visas and currently holds a Bridging Visa A resulting from another review application in the Tribunal as the Department refused his Temporary Skill Shortage (subclass 482) visa.
The Tribunal notes the Departmental travel records which show the visa applicant first arrived approximately 21 years ago. He stayed in Australia for 3 brief periods between that time, 2004 and 2007. He returned to Australia on 30 November 2008 and has remained in Australia except for a 1-month trip overseas in early 2013. The last 12 years have been spent in Australia without breaks.
The Tribunal notes the applicant’s representative has made multiple requests to delay proceeding to the hearing or supply responses which were considered reasonable.
19/02/2025 Request for Extension for Hearing Response:
“We now write for an extension to return the Response to hearing notice of up to 28 February 2025. We are currently awaiting instructions from the client and will need the additional to time to properly prepare for the response.”
02/03/2025 Request for Extension for Hearing Response:
“On 18 February 2025, we requested an extension of time until today to provide the responses, and this was subsequently granted by the Tribunal.
We now write for a further extension to return the Responses to hearing notice of until end of Monday 3 March 2025. We have only received instructions from the clients after close of business today regarding the notices and will need some additional time to complete and return the responses.”
11/03/2025 Request for Extension for Submissions:
“We write to request an extension of time in which to provide submissions and documents in support of both matters on or before Friday 14 March 2025. The lawyer with the carriage of the matters has been unwell and therefore additional time is required to prepare the materials.”
14/03/2025 Request for Extension for Submissions:
“In the alternative, should the Tribunal not be prepared to postpone the hearing, we request until end of Monday 17 March 2025 to provide all material in support of the hearing on 18 March 2025.”
The most recent request for delay of the proceedings is dated 17 March 2025. The earlier request for a hearing and decision delay dated 14 March 2025 was refused. It asked for a substantial delay on the basis that there is an expectation the Department will implement a new process for considering a Minister of Religion Labour Agreement, (MORLA) which could allow a new MORLA to be considered even though a merits review process has not been finalised. This was accompanied by a copy of an email from the Assistant Director, Labour agreement Section, Skilled Visa Branch, Department of Home Affairs, which supported their claim. The email stated a “workaround” to allow the nominator to submit a new MORLA, which their representative stated has occurred and was ably demonstrated by corroborating evidence they submitted. The applicant’s legal representative strongly contends that they expect the new MORLA application will be successful.
There was a requested minimum of a 2 month delay (received on 17 March 2025), until the Tribunal made its decision to allow the procedures to be implemented and a favourable decision to be issued by the Department approving the nomination. A date of 18 May was requested as the earliest time the decision should be handed down. The Tribunal has carefully considered the request and decided to deny it. The Department’s decision was handed down on 8 August 2022. The Tribunal issued its hearing invitation on 10 February 2025. It has provided several extensions of time at the request of the representative for a range of reasons the Tribunal viewed as reasonable at the time. It appreciates the Department’s processes, and the timing of policy changes are outside of the representative’s sphere of influence.
However, in order to efficiently deal with a very substantial case load it is not possible to delay proceedings based on a future event yet to be decided by the Department, which has not yet been implemented. It is appropriate to proceed as the circumstances currently stand. It notes and was discussed during the hearing that if this decision is affirmed the remaining options available to the nominating entity are a request for Ministerial intervention and/or an appeal to the federal Circuit and family Court of Australia.
The Tribunal does not agree with the representative’s assertion that to proceed without the 2 month delay in handing down the decision, as requested, would lead it to jurisdictional error. It notes the reference to Li [2013] HCA 18 (‘li’). The case referred to relates to a skills assessment process which is substantially different to the decision being made by the Department. It is not possible for the Tribunal to assume the Department’s decision will align with the legal representative’s assertions, nor is it appropriate to undertake such a course of action. Nor is it possible to definitively determine when they will hand down their decision. The Tribunal believes it is reasonable to proceed.
For clarity 2.72 (5) is not satisfied as demonstrated by the Departmental records and the applicant’s admission via their representative and at the hearing.
For these reasons the requirements of reg 2.72 are not met. Subsequently the requirements of 140GB are not met as the prescribed criteria are unmet.
The Tribunal notes that prior to the hearing the applicant indicated a request for the Tribunal to apply for Ministerial Intervention on their behalf. This was discussed during the hearing with the representative. The legislation associated with this application is in the view of the Tribunal operating as designed. It has formed the view that the circumstances do not meet the high bar for it to consider approaching the Minister to consider intervention. The Tribunal reassured the applicant that it was their prerogative to apply for Ministerial Intervention if they so wished.
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.
Date of hearing: 18 March 2025
Representative for the Applicant: Ms Karyn Anderson
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)…
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