CHISAPAT PTY LTD (Migration)

[2018] AATA 3903

CHISAPAT PTY LTD (Migration) [2018] AATA 3903 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chisapat Pty Ltd

CASE NUMBER:  1620176

DIBP REFERENCE(S):  BCC2016/2361737

MEMBER:Wan Shum

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2018 at 8:07am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – genuine need of position – applicability conditions – annual turnover of business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73

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 Immigration on 9 November 2016 to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. Chisapat Pty Ltd applied for approval on 14 July 2016 for the occupation of Transport Company Manager, and identified Mr Vipulbhai Kanubhai Patel as the nominee. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate was not satisfied that the position is genuine and decided not to approve the nomination, finding that Chisapat Pty Ltd (the nominator) did not satisfy r.2.72(10)(f). Mr Patel and his family’s Subclass 457 visas were subsequently refused.

4. The nominator has sought review of that decision.

5. Mr Patel appeared on behalf of the nominator at a hearing on 15 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Patel, Mr Patel’s daughter.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

   Specified occupation

8. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the applicable instrument, which is currently IMMI 17/060. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

9. The nominated occupation of Transport Company Manager corresponds to an occupation in IMMI 17/060. The instrument does not require that the nomination be supported in writing by a specified organisation.

10. Since the nomination application was made, changes to the Subclass 457 visa program were made effective 19 April 2017. Following that date, a number of new instruments have been made by the Minister. Relevantly to this case, the instrument that applies includes inapplicability conditions introduced to certain specified occupations. The occupation of Transport Company Manager (ANZSCO 149413) is one of these occupations. For the purpose of paragraph 2.72(10)(aa) of the Regulations, the relevant instrument provides that the specification of that occupation excludes any of the following:

    • Item 9 - The position predominantly involves responsibility for low-skilled tasks.

    Example 1: Rostering, maintaining records, reception duties and allocating duties to housekeepers, porters or doorpersons.
    Example 2: Fruit picking or packing or feeding of livestock or animals.
    Example 3: Truck driving.

    • Item 19 - The position is in a business that has an annual turnover of less than AUD1,000,000.
    • Item 21 - The position is in a business that has fewer than 5 employees.

11. Mr Patel told the Tribunal at the hearing that the business had been struggling over the last couple of years and that the turnover in the most recent financial year was $300,000 to $450,000. However, the financial statements provided for the financial year ending 30 June 2018 indicate that sales income or turnover was $288,377.57 and approximately $388,000 for the financial year ending 30 June 2017. The evidence given to the Tribunal is that there are 6 employees, as well as casual staff. The Tribunal also discussed briefly whether the position predominately involves responsibility for low-skilled tasks such as truck driving. The applicant said he does occasionally drive the trucks if one of the drivers is sick, but that he manages the transport operations by taking orders, packing orders, loading/unloading, maintaining the trucks. Having regard to the evidence before the Tribunal, and as discussed at the hearing, the turnover does not meet the applicability conditions set out in the instrument.

12. As the position is in a business that has an annual turnover of less than AUD1,000,000, the occupation is not applicable to the nominator. The Tribunal is thus not satisfied that the occupation corresponds to an occupation that is specified by the Minister for the purposes of r.2.72(10)(aa).

13. For these reasons the requirements of r.2.72(10)(aa) are not met.

14. Mr Patel told the Tribunal that he and his wife also have other business interests, including being a director of a business named Rashays and a 50% owner of a Topjuice franchise located in Liverpool respectively. He said that the three businesses have 18 to 20 employees who would be affected if he and his family have to go back to India. Mr Patel also said that his children were born in Australia and his school-aged daughter can only read and write in English. Miss Patel also confirmed this orally during the hearing. As explained to the related visa applicants, the Tribunal is unable to waive the requirements or take into account extenuating circumstances to approve the nomination and/or visa application. Mr Patel also raised the fact that when the nomination was originally made, there was no minimum turnover that needed to be achieved. While the Tribunal acknowledges that the terms of the instrument which now applies at the time of this decision have had a detrimental impact on the application, it must consider whether the legislative requirements have been met. The subsequent amendments have meant that the occupation is not applicable in the circumstances of this case. The Tribunal has no power to find otherwise.

15. 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

16. The Tribunal affirms the decision not to approve the nomination.

    Wan Shum
    Member