DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 31 May 2018 at 1:09pm
CATCHWORDS Migration – Standard business sponsor nomination – Web Designer - Whether the nomination relates to a “genuine position” – Whether the nomination was lodged to fill a genuine skill shortage – Where sponsor previously attempted to fill the position locally – Significant portion of the sponsor’s business based online – Where position is of genuine benefit to the sponsor – Decision set aside and substituted
This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 September 2016 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 30 March 2016. 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 2.72(10) (f) of the regulations because the applicant had not provided sufficient evidence in support of “genuine position” and the delegate was satisfied that the nomination was not lodged to fill a genuine skill shortage.
The applicant appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s sole director, Hui (Rita) Zhang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent.
Background
The applicant is a standard business sponsor by approval dating from 21 March 2016 and expiring on 21 March 2021. The applicant carries on business in Sydney from a retail shop in George Street. The business also sells products directly overseas (to China) by virtue of a wholesale operation conducted entirely on the Internet. The products are as set out in the application and include household chemist supplies and healthcare products.
The company has…
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.
The Administrative Appeals Tribunal reviewed a decision concerning EN FINANCIAL PTY LTD's nomination of a Web Designer position. The applicant, a standard business sponsor operating a retail shop and an online wholesale business, sought to nominate Mr. Xian Zhang for a Subclass 457 visa as a Web Designer. The core dispute revolved around whether the nominated position was genuine and if the nomination was lodged to fill a genuine skill shortage, particularly given the sponsor's previous unsuccessful attempts to fill the role locally and the significant online component of its business.
The Tribunal was required to determine if the applicant met the criteria for approval of the nomination under the Migration Regulations 1994. Specifically, this involved assessing whether the nomination was made in accordance with the prescribed process, whether the nominator was a standard business sponsor, and whether the nominee was correctly identified. Further, the Tribunal had to consider if there was any adverse information known to Immigration about the applicant or associated persons, and crucially, whether the nominated occupation of Web Designer corresponded to a specified occupation in the relevant instrument (IMMI 15/092) and was applicable to the nominee.
The Tribunal found that the applicant had complied with the procedural requirements for making the nomination, including using the approved form and fee, and correctly identifying the nominee. It was satisfied that the applicant was a valid standard business sponsor and that no adverse information was known to Immigration. Critically, the Tribunal accepted that the nominated occupation of Web Designer (ANZSCO 232414) corresponded to the occupation specified in IMMI 15/092 and was applicable to the nominee, particularly in light of the applicant's substantial online business operations which necessitated the development and maintenance of a web platform. The Tribunal noted that while the retail operation alone would not warrant such a position, the online component rendered the role genuine and essential.
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
The applicant was represented in relation to the review by its registered migration agent. Background The applicant is a standard business sponsor by approval dating from 21 March 2016 and expiring on 21 March 2021. The applicant carries on business in Sydney from a retail shop in George Street. The business also sells products directly overseas (to China) by virtue of a wholesale operation conducted entirely on the Internet. The products are as set out in the application and include household chemist supplies and healthcare products. The company has been trading since 2013. Its early retail operation, according to the director, was unsuccessful as very few people entered the shop. The applicant sought to develop an online trading platform for selling product which it commenced in about late 2015. That has proved significantly more effective than the retail outlet. The applicant has sought to renew the application for the nomination of Mr Zhang. At the hearing, the director said that when lodging this application for the further nomination, she did not pay close attention to the material provided in support and effectively produced what had been given to the Department in the first nomination application (which had been successful). As noted by the delegate in the decision, the applicant referred to “Reasons of the new position”, when in fact the applicant sought to refer rather to the new application, not position. The application was brought in March 2016, at which time the director stated the applicant already had an Internet web platform which it had operated since late 2015. It is unfortunate the applicant did not make the details clear to the Department when submitting the application and which it could have done with the evidence now supplied to the Tribunal for the hearing. The director said the nominee applied for a visa which was ultimately refused, but during which period while the application was being processed, the nomination approval expired. The nomination is valid only for a period of 12 months after the day on which the nomination is approved and had therefore expired on 27 January 2016. The director stated at the hearing, and the Tribunal is satisfied that the retail operation of the applicant is very small and does not trade profitably from the George Street premises. The Tribunal is satisfied that if the applicant conducted only the retail shop, the occupation of web designer neither exists nor would be relevant to that business, and the Department decision would need to be affirmed. The director stated that in order to create a suitable online web platform, it was necessary to employ a full-time web designer (ANZSCO 232414). As referred to above, the applicant made a successful nomination application for the position of Web Designer, which was approved by the Department on 27 January 2015. The nominee was Xian Zhang, the director’s elder brother. The Tribunal explained to the applicant at the hearing that this review was consideration only of the nomination application, and whether the position associated with the nominated occupation is genuine, and not the visa application by the nominee which would have to be dealt with separately by the Department. The director understood that if the nomination is successful, the nominee must still apply for approval of a visa for the nominated occupation.
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 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). The nomination must comply with the prescribed process Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73. The Tribunal finds that the applicant is nominating an occupation under s.140 GB (1) (b): r.2.73 (1A) (a), being Web Designer (ANZSCO 232414). The applicant identifies in the nomination a proposed applicant for a subclass 457 Visa, Xian Zhang, as the person who will work in the occupation as required by 2.73 (1A) (b). The nomination was made using the approved form and fee as required by r.2.73 (2), (3), (5) & (9).The applicant has identified the nominee as Xian Zhang in the nomination and in accordance with r.2.73 (4)/(4A) and r.2.72 (5).The applicant has provided the certification that the nominee has not engaged in conduct that constitutes a contravention of s.245 AR (1) of the Act, and as required by r.2.73 (4B). The nomination includes the location at which the occupation will be carried out and the 6 digit ANZSCO code 232414, the applicant being a standard business sponsor. For these reasons the requirements of r.2.72 (3) are met.Nominator is a standard business sponsor or party to a work agreement Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister. A standard business sponsor is defined in regulation 1.03 as a person who is an approved sponsor in relation to the standard business sponsor class by the Minister, under subsection 140E (1) of the Act. Approved sponsor is relevantly defined in section 5 (1) of the act as a person who has been approved as a sponsor and the sponsorship approval has not been cancelled or ceased to have effect, or is a non-ministerial party to a work agreement. On the basis of the information available to it, the Tribunal finds that the applicant was approved as a standard business sponsor for a period commencing on 21 March 2016 and ending on 21 March 2021 and that status remains in effect at the time of decision. For these reasons the requirements of r.2.72 (4) are met.Identification of the nominee Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. On the basis of the information provided in the nomination form, the Tribunal is satisfied that the applicant has identified the person to undertake the nominated occupation as the visa applicant and that he is an applicant for a subclass 457 visa, given that he applied for a subclass 457 visa on 30 March 2016.
Decision
Reasons for decision
For the reasons given above, the applicant 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.Alan McMurranMemberATTACHMENT - 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.(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.
Ratio Decidendi
Legal Principle Established
For these reasons the requirements of r.2.72 (8B) are 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. Specifically ‘adverse information’ is defined in subregulation 2.57(3) for these purposes to mean any adverse information relevant to a person’s suitability as an approved sponsor and includes information that the person (the applicant) or another person associated with the applicant, has, in relation to a Commonwealth, State or Territory law of a type described in subregulation 2.57(3)(b):·Been found guilty by a Court of an offence; or ·Has to the satisfaction of a ‘competent authority’ (as defined in regulation 2.57) acted in contravention of such a law, or has been subjected to an administrative action for possible contravention by such authority; or·Is subject to disciplinary action or legal proceedings in relation to an alleged contravention of such law. It also includes information that the applicant, or a person associated with the applicant has become insolvent within the meaning of the Bankruptcy Act 1966 and the Corporations Act 2001. The conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous 3 years. The Tribunal finds that there is no adverse information of the type described above known to the Department or it about either the applicant or an ‘associated person’ before it. For these reasons the requirements of r.2.72 (9) are met.Specified occupation 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 instrument IMMI 15/092,for the occupation of Web Designer, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. 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). As indicated above, the Tribunal has found that the applicant is a Standard Business Sponsor. The relevant instrument is IMMI 15/092, which specifies the occupation of ‘Web Designer’ (ANZSCO Code 232414). Having considered the tasks and duties listed on the form and in the position description and as referred to in the findings below, the Tribunal accepts that the nominated occupation corresponds to the occupation described in ANZSCO. For these reasons the requirements of r.2.72 (10)(aa) are met. The Tribunal further finds that there is no requirement in the instrument for the nomination to be supported by a specified organisation and for these reasons the requirements of r.2.72(10)(b) are not applicable.Terms and conditions of employment