Design Hvac Pty Ltd (Migration)

Design Hvac Pty Ltd (Migration) [2019] AATA 3567 (25 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Design Hvac Pty Ltd
CASE NUMBER:  1829240
HOME AFFAIRS REFERENCE(S):           BCC2017/4708489
MEMBER:Michael Cooke
DATE:25 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 25 June 2019 at 3:35pm
CATCHWORDS
MIGRATION – Nomination – genuine position – visa application withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), r 2.72

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 19 September 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 10 December 2017. 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. 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg.2.72(10)(f) because the delegate did not consider the position associated with the nominated position to be genuine.
An Invitation to Comment on or Respond to Information was sent to the nominator – Design HVAC Pty Ltd in the person of Mr Majid Mousania. The Invitation read as follows:
The particulars of the information are:
·It is a requirement for approval of the nomination that you have identified the visa holder, applicant or proposed applicant for the visa who will work in the nominated occupation. This requirement is in r.2.72(5) of the Migration Regulations 1994 as it applies to your case.
·A review of your file and Departmental records suggests that the person you identified does not hold a Subclass 457 (Temporary Work (Skilled)) visa and they do not have an application for a Subclass 457 (Temporary Work (Skilled)) that is yet to be decided by the Department of Home Affairs or the Tribunal.
·The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018. As a result, the Subclass457 visa program was repealed and closed to new applications from that date onwards.
·The Subclass 482 (Temporary Skills Shortage) visa that commenced on 18 March 2018 is not compatible with a nomination application made before then, meaning that a Subclass 482 (Temporary Skills Shortage) visa holder cannot be relied upon to satisfy r.2.72(5) as it applies in your case.
This information is relevant to the review because it suggests that the person you identified as the proposed applicant does not hold, and is unable to be granted, the type of visa required to work in your nominated occupation.
If we rely on this information in making our decision, we may find that the person you identified will not work in the nominated occupation. This would be the reason, or apart of the reason, for affirming the decision under review.
Design Hvac Pty Ltd is invited to give comments on or respond to the above information in writing.
The applicant responded to the Invitation as follows:
Dear Sir or Madam,
Thanks for your email regarding to our Nomination refusal case.
The person which I identified for 457 visa had lodged his application on 28/2/2018. I have attached the acknowledgement of application to this email. I can find out and send you the transaction history for application fee as well if that is required.
I have also attached the TRA assessment which was done for him in the past but wasn’t sure if he needs a new one or still those old codes would be valid as the previous code was 4312-11 for Refrigeration and Airconditioning Mechanic. Just as a general feedback we almost gave up on this application, we have had the business application lodged on 2017 and the main applicant on beginning of 2018 and still waiting on the decision of the department.
This is a genuine request and I have been suffering from not having skilled worker since starting of the business and also have provided enough evidence to prove it but at the same time I need to know sooner that if this isn’t a benefit that I can use so I won’t be waiting anymore, as I know even if the nomination gets approved then we have to wait for another year or more for the main applicant to be processed which this isn’t really ideal and fair for any of us.
I do believe that you need time to have your checks done but from my side, I only allowed 3 to 9 months for the whole process as it was mentioned in the website. Obviously, there are a lot of things which has been changed for everybody during this time, surprisingly even the visa application cannot be find in the system.
Anyway, whatever the result would be, have it sooner would definitely help us to find out our way.
I would like to mention that the visa applicant and all members of his family had visited Australia from July 2017 to September 2017 on tourist visa, which all the documents are attached into the application lodgement. I thought that might be a positive sign for the case to show that we are doing things the right way which is costing us a lot of time and money, having relationship with the nominee is the only reason for refusal of the case which that is the most positive and reliable part for me as I know who that person is and I can trust him to help us grow the business.
When such a visa exists having someone which I have no knowledge about him would be very risky for me, anyway applying for another person is not an option for us anymore as the whole visa subclass has been abolished last year so this is the only chance that we have.
Please help us in this case to get out of so much difficulties so I can concentrate on growing more, I can send you a list of people who came and were not capable of delivering the job and the amount of business I have lost just for the lack of experienced and committed people.
In the meantime, if you do require any additional document or information please do not hesitate to inform us.
Kind Regards Majid Mousania
The applicant appeared before the Tribunal on 19 June 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 sponsor and meets the requirements in r.2.72(5).
The applicant came to the hearing (he explained) to present a case for setting aside the nomination refusal. He said he did understand the Tribunal Invitation to Comment but appeared thunderstruck when the Tribunal pointed out to him that identified visa application had been withdrawn - according to Departmental information. The Tribunal said that this was the reason why the Tribunal had earlier sent him the adverse information on which to comment. The Tribunal noted that the application had been withdrawn on the same day as the delegate’s decision. Thus, even though the applicant had wished to discuss the merits of his case to employ his brother-in-law as an Air Conditioning Mechanic at his company, the withdrawal was fatal to his own chances in the review. The applicant was devastated as he said that he had spent copious time preparing his case for review. He provided the Tribunal with additional information supporting his plea to have the nomination approved.
The Tribunal alerted him that his visa applicant brother-in-law (who was back living in Iran) did not have an application for a Subclass 457 (Temporary Work (Skilled)) that is yet to be decided by the Department or the Tribunal. The applicant pointed out that the visa applicant (Mr Yarali) had applied for the visa on 28 February 2018 - prior to closure of Subclass 457 on18 March 2018 (T1, f.40). The applicant nominator told the Tribunal he was clueless why his brother-in-law had withdrawn the visa application without his knowledge. The Tribunal observed that it happened (according to Departmental information) on the same day as the visa refusal decision was handed down – 19 September 2018 (T1, f.4).
The Tribunal informed him that the problem was that it was a criterion for approval of his nomination that the person he identified as the proposed applicant must hold a visa - which he did not. That person (Mr Yarali) was now unable to be granted the type of visa required to work in the nominated occupation as he had no application for review before the Tribunal. Furthermore, the new Subclass 482 (Temporary Skills Shortage) visa that commenced on 18 March 2018 to replace the Subclass 457 visa is not compatible with a nomination application made before then – were he to win his review. This means that a Subclass 482 (Temporary Skills Shortage) visa holder cannot be relied upon to satisfy r.2.72(5) as it applies in his case. The result of all this change was that the applicant (Design HVAC Pty Ltd) had not only been refused approval of the nomination but it would now have to make an eventual new application for approval as a nominator if it wished to employ Mr Yarali at some future stage.
The applicant reiterated what he had said in his response to the Invitation (pursuant to s.359A). That was that the Department had taken so long to process the case. Now all that he had done was waste his time and money on the Tribunal review. He said he should also be getting a refund for Mr Yarali’s visa application as he had spent thousands of dollars on this unsuccessful application and he was totally unaware of the actual withdrawal of the visa application. The Tribunal suggested that if he were to try again he might seek the assistance of a registered migration agent to facilitate the process.
For these reasons the requirements of r.2.72(5) are not met.
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.
Michael Cooke
Senior Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(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.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(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 the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; 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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.

[2019] AATA 3567

25 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Standing

Statutory Construction