Cleaning Wizard Australia Pty Ltd (Cleaning Wizard) operates a national commercial cleaning business with operations in Victoria, New South Wales, Queensland, and South Australia. Nishan Amarasinghe is Cleaning Wizard’s sole director and shareholder. Her husband Don Amarasinghe (Don) is Cleaning Wizard’s general manager. He makes all the company decisions and effectively operates its business. In substance, he is Cleaning Wizard’s controlling mind. Although registered as a director, Nishani does not have an active role in operating Cleaning Wizard’s business.
Cleaning Wizard has six full time employees (as well as Don as the general manager), and one part time employee. It has six franchises on issue to which franchisees it refers cleaning work that it has contracted to perform. Otherwise, it performs its contracted cleaning work by sub-contracting the work to the between 40 and 50 cleaning sub-contractors nationwide with whom it ordinarily deals. It has one employed cleaner in New South Wales. Insofar as it performs cleaning work directly, it performs the work through that employee. The majority of its contracted cleaning work is performed by sub-contractors.
Since 2014, Cleaning Wizard has employed the nominee Nuwan Anuradha Arachchillage (Nuwan) in a position it says answers the description of a contract administrator. On 26 September 2014, it applied to nominate Nuwan for a Subclass 457 visa. Contract administrator (ANZSCO 511111) was the position for which it sought approval.
A nomination of an occupation for a 457 visa is made under s.140GB of the Migration Act 1958 (Act) and r.2.73 of the Migration Regulations 1994 (Regulations). Regulations 2.72(3) to (12) prescribe the 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. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA of the Act.
On 9 December 2014, a delegate of the Minister for Immigration refused to approve Cleaning Wizard’s nomination under s.140GB…
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.
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AGLC
CLEANING WIZARD AUSTRALIA PTY LTD (Migration) [2017] AATA 545
Case
[2017] AATA 545
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal reviewed a decision concerning a nomination application made by Cleaning Wizard Australia Pty Ltd. The dispute centred on whether the nominated occupation, "contract administrator," met the requirements stipulated in the Migration Regulations 1994.
The Tribunal was required to determine if the nomination complied with the prescribed process under regulation 2.73, if Cleaning Wizard Australia Pty Ltd was an approved standard business sponsor or party to a work agreement, and if the nominee was correctly identified. Crucially, the Tribunal had to assess whether the nominated occupation and its corresponding ANZSCO code corresponded with an occupation specified in legislative instrument IMMI 16/059, and whether the position itself was genuine, as per regulations 2.72(10)(aa) and 2.72(10)(f).
The Tribunal reasoned that the nomination application satisfied the procedural requirements of regulation 2.73 and that Cleaning Wizard Australia Pty Ltd was an approved standard business sponsor. It found that the nominee, Nuwan Anuradha Piyasena Jayasinghe Arachchillage, was correctly identified and that certain provisions relating to existing Subclass 457 visa holders did not apply as the nominee did not hold such a visa. Applying the principles from *Nguyen & Vi Publishers Pty Ltd v Minister for Immigration & Anor* and *Cargo First Pty Ltd v MIBP*, the Tribunal conducted a qualitative analysis of the nominated position and its duties, concluding that the role of contract administrator genuinely corresponded to the description in ANZSCO code 511111 and that the position was genuine.
Consequently, the Tribunal set aside the original 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 In this review, the Tribunal must decide 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). The nomination must comply with the prescribed process Regulation 2.72(3) requires the applicant to have made the nomination in accordance with the process set out in r.2.73. Regulation 2.73 requires:(a)The person is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a);(b)The applicant identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b);(c)The nomination was made using the approved form and fee: r.2.73(2), (3), (5) & (9);(d)The applicant has identified the nominee in the nomination: r.2.73 (4A) and r.2.72(5); and(e)The nomination includes the location at which the occupation will be carried out, and the name and/or 6 digit ASCO/ANZSCO code if the applicant is a standard business sponsor, or the name of the occupation in the work agreement if applicant is a party to the work agreement: r.2.73 (4A). The original nomination application is contained in the department’s file, which was given to the Tribunal in this review. An examination of that application reveals that each of the requirements set out in the preceding paragraph have been satisfied. The requirements of r.2.72(3) have been met.Nominator is a standard business sponsor or party to a work agreement Regulation 2.72(4) requires the person making a nomination to be either a standard business sponsor or a party to a work agreement other than a Minister. Cleaning Wizard is an approved standard business sponsor. Its approval is to expire on 24 April 2017. It has applied to renew that approval. As at the time of the hearing, and the time of this decision, Cleaning Wizard was an approved standard business sponsor. The requirements of r.2.72(4) have been met.Identification of the nominee Regulation 2.72(5) requires the applicant to identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The nomination application identifies Nuwan Anuradha Piyasena Jayasinghe Arachchillage as the person who will work in the nominated occupation. The requirements of r.2.72(5) have been met. Requirements for existing Subclass 457 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. Nuwan as the proposed nominee does not hold a 457 visa. The requirements of r 2.72(6), (7A) and (10)(g) do not apply.Information about the nominated occupation
Decision
Reasons for decision
For the reasons given above, Cleaning Wizard 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.L. HawasMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 Criteria for approval of nomination — Subclass 457…(1)This regulation applies to a person who is:(a)a standard business sponsor; or(b)a party to a work agreement (other than a Minister);who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.(4)The Minister is satisfied that the person is:(a)a standard business sponsor; or(b)a party to a work agreement (other than a Minister).(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.(7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.(7A)In addition to subregulation (6):(a)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and(b)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the person has listed on the nomination a person described in paragraph (6) (a); and(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;(b)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and (ii) the person is a standard business sponsor;the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);(c)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and(ii) the person is a party to a work agreement;the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(9)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.(10)If the person is a standard business sponsor — the Minister is satisfied that:(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ASCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (a); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ASCO; or(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ANZSCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ANZSCO; or(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).(f)the position associated with the nominated occupation is genuine; and(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;(ii) if:(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; (iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;(iv) unless subparagraph (ii) applies—the holder:(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and(h)either:(i) the person will:(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and(B)give a copy of that contract to the Minister; or(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:(a)the terms and conditions of employment; and(b)the base rate of pay, under the terms and conditions of employment;that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and(c)the Minister considers it reasonable to do so.(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.
Ratio Decidendi
Legal Principle Established
The requirements of r.2.72(8A) have been met. No adverse information known to Immigration Regulation 2.72(9) 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 rr.1.13A and 1.13B. The Tribunal does not have evidence before it of any relevant adverse information. The requirements of r.2.72(9) have been met. Specified occupation Subclause 2.72(10)(aa), as it applies to this case, requires the nominated occupation and its 6-digit code to correspond with an occupation and 6-digit code specified in legislative instrument IMMI 16/059, being the instrument in force at the time of this decision. The position of ‘contract administrator’ is specified in IMMI 16/059 as ANZSCO code 511111. But corresponding job titles and codes on their own are not sufficient to satisfy the requirements of r. 2.72(10)(aa). In Nguyen & Vi Publishers Pty Ltd v Minister for Immigration & Anor and Nguyen v Minister for Immigration & Anor[1], the Federal Circuit Court found that in considering whether an applicant had satisfied the requirements of the clause, the Tribunal (or decision maker) had to determine whether the job nominated by the applicant corresponded to the job described in ANZSCO. That required the Tribunal to examine the proposed duties of the nominated employee and determine whether those duties corresponded with the ANZSCO description of the job. [1] [2013] FCCA 1697 at [37] and [38] per Judge Burchardt. In Cargo First Pty Ltd v MIBP[2] the Federal Circuit Court described a similar approach to determining whether the requirements of clause 2.72(10)(f) had been met: whether the position associated with the nominate occupation is genuine. The Court described an approach that required the Tribunal to be satisfied that the position exists. That entails a qualitative analysis of the position to determine whether it is really what it purports to be, and not simply whether the duties relevant to the position include the majority of those referred to in ANZSCO in any particular case. The approach to determining whether the requirements of r. 2.72(10)(aa) and r. 2.72(10)(f) have been met in any given case will usually involve similar factual inquiries and findings. In many cases – not all as each case must be determined on its own facts – satisfying one will necessarily mean that the other is satisfied as well. [2] [2015] FCCA 2091 at [30] per Judge Smith. The decision at first instance was upheld on appeal in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30. The construction of r. 2.72(10)(f) at first instance was endorsed at [36]. In this case, the analysis under r. 2.72(10)(aa) and r. 2.72(10)(f) are similar and lead to the same result. For the reasons set out in paragraphs 50 to 64 below, the Tribunal finds that the requirements of r.2.72(10)(aa) have been met. Terms and conditions of employment