Fidan Holdings Pty Ltd (Migration)

[2024] AATA 1596

Fidan Holdings Pty Ltd (Migration) [2024] AATA 1596 (4 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Fidan Holdings Pty Ltd

REPRESENTATIVE:  Mr Yashpal Erda (MARN: 0963835)

CASE NUMBER:  2102864

HOME AFFAIRS REFERENCE(S):          BCC2020/1926911

MEMBER:Karen McNamara

DATE:4 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 04 March 2024 at 2:26pm

CATCHWORDS 
MIGRATION – nomination – Accountant (General) – Medium-term stream – failed to provide the requested information within the prescribed period – applicant has not provided contemporary information about the roles and duties of the nominated position – not satisfied the occupation of Accountant (General) is applicable to the nominee in accordance with the instrument – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359, 360
Migration Regulations 1994, rr 2.72, 2.73

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Citizenship v Li [2013] HCA 18

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 15 February 2021, to refuse to approve the application by Fidan Holdings Pty Ltd (the applicant) for 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. On 19 July 2020, the applicant lodged an application for nomination for the occupation Accountant (General) (ANZSCO 221111). 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.

3. 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 for a period of up to 4 years.

4. The applicant has provided a copy of the delegate’s decision to the Tribunal, which records on 15 February 2021, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.2.72(8)(b) of the Regulations. The delegate found that the nominated position is affected by an exception (caveat) specified in the relevant legislative instrument, and as a result the nominated occupation is not applicable to the nominee.

5. The applicant lodged an application for review with the Tribunal on 8 March 2021. The review application was accompanied by a copy of the delegate’s decision.

6. The Tribunal also has before it, the Department file containing all information before the delegate at the time of their decision.

7. On 8 September 2023, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, (dispatched by email to the authorised recipient/representative), inviting the applicant to provide updated and current information demonstrating that the applicant met all the relevant s.140GB and r.2.72 criteria. The Tribunal provided detailed examples of the kind of information that would assist it. The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.2.72 and s.140GB are met at the time of its decision.

8. The invitation was sent to the authorised recipient/representative at the last email address provided in connection with the review. The invitation advised that, if the information was not provided in writing by 22 September 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

9. On 21 September 2023, the authorised recipient/representative wrote to the Tribunal via email, seeking an “extension of time by additional 8 weeks above the stipulated deadline of 22 September 2023.” The representative stated the reason for the extension being as follows;

   “This is because the Owner/Director of the company was unwell which led to the documentation for this case not being prepared for. The Director is ready to provide medical evidence for the same if needed.

   Furtermore, our client also in the middle of finalising the company account as requested which once finlaised, would need to be documented by the Auditor.

   Our client would like to submit all documents to the AAT together for the best outcome of the case. As informed above, some other documents have to be relied on by external parties and therefore these factors are beyond the clients control.

   We therefore request to provide an extension to submit documents for this case till 23 November 2023 which would be in the best interest of the applicant and for a fair procedure for this case.”[1]

   [1] Prepared and transcribed as submitted by representative

10. On 22 September 2023, the Tribunal wrote to the authorised recipient/representative advising that the Tribunal had agreed to grant an extension of time to 17 November 2023. The Tribunal stated “If we do not receive the information by 17 November 2023, we may make a decision on the review without taking any further action to obtain the information. Fidan Holdings Pty Ltd will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”

11. On Tuesday 21 November 2023 the authorised recipient/representative submitted on behalf of the applicant the following:

    ·Financial statements 1 July 2021 to 30 June 2022

    ·ATO activity statement generated 20 November 2023

12. The information was accompanied by a covering email by the representative which stated:

    “ We refer to the above matter for our client Fidan Holdings Pty Ltd.

    Please find attached documents provided by the client today for this matter. These are the only documents provided by the client till now to us and they have informed us that their accounts are still under process by the Auditors and therefore they are not in a position to provide any further documents for this case.

    They have requested further time to provide the documents if possible or will try providing the documents around the hearing date if an extension is not possible for this matter.

    Due to the above, we are not in a position to provide any further documents for the AAT's consideration apart from the ones attached with this emai.[2]

    We thank you for your time on this case and for its process.”

    [2] Prepared and transcribed as submitted by representative

13. The Tribunal notes the information was provided to the Tribunal four days after the prescribed period. Where an applicant is invited to provide further information in accordance with subsection 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 (subsection 359C(1) of the Act) and pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

14. Accordingly, as the applicant failed to provide the information requested within the prescribed period, the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

15. 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.

16. 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

17. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the relevant requirements under r.2.72 of the Regulations and s.140GB of the Act, is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

18. The Tribunal is satisfied that the invitation to provide information and subsequent advice granting an extension of time to respond, was sent to the authorised recipient at the correct email address as provided to the Tribunal. The invitation and granting of an extension of time, were acknowledged by the authorised recipient/representative, however information was provided after the stipulated timeframe. To date, no further information has been provided and the applicant has not made contact with the Tribunal to indicate that additional information is forthcoming.

19. The Tribunal has had regard to the fact that the application was refused by the Department on 15 February 2021. The Tribunal therefore observes that the applicant has been aware for over three years of the reasons for the nomination refusal. Since lodging the review application, the applicant to date, has only provided financial statements for the 2021/2022 financial year and an ATO activity statement generated 20 November 2023. The applicant has not provided any additional information in support of their review application, as requested in the Tribunal’s letter of 8 September 2023. After being granted an extension to 17 November 2023, on 21 November 2023, the applicant’s representative requested “further time to provide the documents if possible or will try providing the documents around the hearing date if an extension is not possible for this matter.” The Tribunal notes that this additional extension was requested after the stipulated timeframe provided by the Tribunal, following the applicant’s previous request for an extension. At the time of this decision no further information has been provided to the Tribunal in support of the application.   

20. The Tribunal has also taken into account the fact that the implications of not providing the information within the stipulated timeframe, were set out and bolded in the Tribunal’s letters of 8 September 2023 and 22 September 2023.

21. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant, or to exercise its discretion under s.363(1)(b) to adjourn the review any further to allow the applicant more time in which to demonstrate that the applicant meets the requirements in reg 2.72: s 140GB(2).

22. In the circumstances, the Tribunal has decided to proceed to make its decision on the available evidence.

23. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.

    Specified Occupation

26. The Tribunal’s letter to the applicant of 8 September 2023, invited the applicant to provide updated and current information about all the relevant requirements in r.2.72 and s.140GB and provided examples. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant responded to the Tribunal’s invitation after the prescribed period.

27. The only contemporary information provided to the Tribunal by the applicant, is the applicant’s 2021/22 financial statements and an an ATO activity statement generated 20 November 2023.  

28. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument.

29. The Tribunal finds that the nominated occupation of Accountant (General) (ANZSCO 221111) is specified in the Medium- term skilled occupation list in LIN 19/048.

30. Further, the Tribunal is satisfied that the occupation of Accountant (General) has attached to it the following inapplicability conditions (or ‘caveats’) in accordance with instrument IMMI 19/048:

    Item 6:   The position is a clerical, bookkeeper or accounting clerk position

    Item 19:The position is in a business that has an annual turnover of less than AUD1,000,000

    Item 21: The position is in a business that has fewer than 5 employees

31. On 15 February 2021, the delegate refused the application on the basis the applicant’s nomination did not satisfy the requirements of r.2.72(8)(b) of the Regulations, because the delegate found that the nominated position is affected by an exception (caveat) specified in the relevant legislative instrument, and as a result the nominated occupation is not applicable to the nominee.

32. The delegate in summary was not satisfied that the majority of the actual tasks of the position associated with the nominated occupation, would be in line with the highly skilled position of an Accountant as described by ANZSCO. The delegate noted the position description as provided by the applicant and concluded that the duties of the position aligned more with a bookkeeper /accounts position. The delegate further noted that the job advertisement for the position was listed as “Assistant Accountant’ and the duties listed were more aligned with bookkeeper/accounting clerk.

33. The delegate therefore concluded based on the information before them, that the position is affected by an exception specified in the relevant legislative instrument, and as a result the nominated occupation is not applicable to the nominee.

34. Tribunal invited the applicant to provide updated and current information about a range of matters, including the roles and duties of the nominated position, how these correspond to the position description in ANZSCO, and where the position associated with the nominated occupation sits within the organisation structure of the business.

35. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide including a description of the duties and responsibilities and how they fit within the structure and needs of the business, a comparison of how the roles and duties of the nominated occupation match or are different from the occupation description in ANZSCO. Further, as applicable to this matter, if the nominated occupation is subject to an inapplicability condition (also referred to as a caveat), information about why the caveat does not apply in the circumstances of this matter.

36. The Tribunal acknowledges that the applicant provided information pertaining to the financial position of the business, however, the applicant has not provided contemporary information about the roles and duties of the nominated position or how they correspond to the nominated occupation’s position description in ANZSCO. Nor has the applicant provided current information relevant to the inapplicability conditions specified in LIN 19/048 as described previously in this decision.

37. In the circumstances, the Tribunal is unable to be satisfied at the time of its decision, that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument LIN 19/048, and that the occupation of Accountant (General) is applicable to the nominee in accordance with the instrument. Accordingly, the requirements in r.2.72(8)(b) are not met.

38. For these reasons the application does not satisfy the requirements of r.2.72(8).

39. Further, the Tribunal requested updated and current information relevant to the requirements of r.2.72 that are also required to be satisfied for the nomination to be approved. In the absence of updated and current information as to these requirements, the Tribunal is also unable to be satisfied that all the requirements of r.2.72 are met as required.

40. 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

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

    Karen McNamara
    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)…