Element 13 Pty Limited (Migration)

[2022] AATA 3304

Element 13 Pty Limited (Migration) [2022] AATA 3304 (26 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Element 13 Pty Limited

REPRESENTATIVE:  Mr Thien Chinh Pham

CASE NUMBER:  1920976

HOME AFFAIRS REFERENCE(S):          BCC2019/2487807

MEMBER:Terrence Baxter

DATE:26 September 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 26 September 2022 at 10:08am

CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – glazier – genuine position – no substantive response to tribunal’s invitation to provide current information – no contemporary evidence of business activity or how nominated position fits into it – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA, 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 2.72(10)(a)

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 July 2019 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 applied for approval on 11 May 2019. The applicant nominated Mr The Huy Doan (the nominee) for the occupation of Glazier. 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 case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) because the delegate found that the position associated with the nominated occupation was not genuine.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 31 July 2019.

5. On 17 August 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act) inviting it to provide current information addressing the relevant requirements under reg 2.72 of the Regulations and s140GB of the Act. The invitation stated that the requested information should be provided to the Tribunal by 31 August 2022. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address.

6. The applicant was represented in relation to the review by Mr Thien Chinh Pham of WeCARE Immi, Legal and Coaching Services of Sydney.

7. On 9 September 2022, the representative requested an extension of time until 30 September 2022 to respond to the Tribunal’s invitation of 17 August 2022. On the same day, 9 September 2022, the Tribunal notified the applicant as follows:

   In our letter of 17 August 2022, we invited you to provide information by 31 August
   2022, and advised that any request for an extension of time to provide the information must also be received by 31 August 2022. We did not receive your request for an extension of time until 9 September 2022.

   We also advised that if we did not receive the information within the period allowed or
   as extended, we may make a decision on the review without taking any further action
   to obtain the information, and you would lose any entitlement you might otherwise
   have had under the Migration Act 1958 to appear before us to give evidence and
   present arguments. As you did not provide the information or request an extension of
   time to provide the information by 31 August 2022, you appear to have lost your right
   to a hearing, however, this will need to be determined by the Member who is
   constituted your matter.

   If the Member determines that you have lost your right to a hearing, the Tribunal may
   make a decision on the review and will have regard to all the information that is before it at the time the decision is made. If you wish to provide the information and any other material in support of your review, you should do so by no later than 23 September 2022. The Tribunal may proceed to decision at any time after 23 September 2022.

8. The applicant failed to provide the information referred to in the invitation of 17 August 2022 within the prescribed time for responding to the invitation. The applicant failed to provide information to the Tribunal before the date specified in the Tribunal’s letter of 9 September 2022, namely 23 September 2022. No response to the invitation has been received by the Tribunal at the time of this decision other than the request for extension of time of 9 September 2022.

9. Where a review applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s 359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it, as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

10. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

11. The Tribunal has taken into account that the applicant has been aware since 12 July 2019 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 17 August 2022 were set out in that correspondence. The Tribunal has also taken into account that, although the Tribunal’s letter of 9 September 2022 confirmed that the applicant had lost its entitlement to a hearing, the applicant was advised that, if it wished to provide information in response to the Tribunal’s invitation, it should do so no later than 23 September 2022. The applicant did not take advantage of that extended period to provide information in support of the application.

12. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant requirements of reg 2.72 of the Regulations and s140GB of the Act.

13. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

    Evidence presented to the Department

16. The applicant produced to the Department of Home Affairs (the Department) documents including:

    a.Job advertisements.

    b.A submission from the applicant dated 23 April 2019 regarding attempts to fill the position together with the resumes from job applicants.

    c.A job description.

    d.A submission from the applicant dated 23 April 2019 regarding genuineness of the position.

    e.An organisational Chart.

    f.A submission from the applicant’s accountant dated 7 May 2019 accompanied by a financial report for the 2018 financial year.

    g.An employment contract dated 23 April 2019.

    h.A submission from the applicant dated 23 April 2019 regarding the nominee’s prior employment.

    i.A submission from the representative dated 11 June 2019 accompanied by a further submission from the applicant’s accountant regarding the applicant’s turnover and payroll expenditure, a letter of support from the applicant’s Project and Site Manager and letters of support from various other parties.

    j.A submission from the representative dated 24 July 2019 requesting that the delegate’s decision be vacated.

    Evidence presented to the Tribunal

17. The applicant produced to the Tribunal a copy of the delegate’s decision.

    Position must be genuine and full-time

18. 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.

19. In May 2019, the applicant produced to the Department documents job advertisements, a submission regarding attempts to fill the position, a submission that the position is genuine, an employment contract. In June 2019, in response to a letter received from the Department, the applicant produced further documents claiming that the position was genuine.

20. In Cargo First the Federal Circuit Court of Australia was considering reg 2.72(10)(f) of the Regulations (as it was at that time) and considered the issue as meaning “determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be”. In short, there is no pre-determined test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering what the tasks and duties associated with the position and described as the occupation for the nomination are, and whether the nominee performs those tasks, and the commensurate level of experience of the nominee to perform those tasks.

21. The Tribunal has considered the Department’s policy in relation to this requirement contained in its Procedural Instructions. The policy relevantly states that circumstances where the genuineness of the position may be queried include where the position may not be consistent with the nature of the business. On this issue, the policy states that the decision-maker should consider whether the size or turnover of the business appears to support the nominated position. According to the policy, evidence that should be considered by the decision-maker includes an organisational chart to indicate how the position fits into the business activity, any increase in business activity over previous months or years requiring persons in the nominated occupation and overtime work, or increases in overtime work, for employees currently in the nominated occupation.

22. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.

23. The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal considers that the provisions in the policy regarding assessment of the genuineness of the position are appropriate and considers that it is reasonably open to the Tribunal to rely on those provisions in assessing whether the applicant has met this requirement.

24. In the Tribunal’s invitation to provide information dated 17 August 2022, the applicant was advised as follows:           

    In order for the Tribunal to approve the business nomination application lodged by the applicant, it must be satisfied that the requirements in reg 2.72 of the Migration
    Regulations 1994 (the Regulations) and s 140GB of the Act are met at the time of its
    decision, including but not limited to the particular criterion that the delegate found was not met.

    The Tribunal now requires updated and current information addressing these criteria.

25. The Tribunal has considered the evidence provided by the applicant to the Department. That evidence is now over three years old. No contemporary evidence has been produced to the Tribunal to indicate how the nominated position would fit into the applicant’s business activity. In fact, the applicant has produced no contemporary evidence regarding the extent of its business activity.

26. Having regard to the lack of contemporary evidence before the Tribunal, bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s 359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the position associated with the nominated occupation is genuine. Accordingly, the requirement in reg 2.72(10)(a) is not met.

27. For these reasons the requirements of reg 2.72(10) are not met.

28. 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

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

    Terrence Baxter
    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)…