Girchow Enterprises Pty Ltd (Migration)

[2023] AATA 126

Girchow Enterprises Pty Ltd (Migration) [2023] AATA 126 (6 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Girchow Enterprises Pty Ltd

REPRESENTATIVE:  Ms Saemi Seon (MARN: 1679394)

CASE NUMBER:  1920240

HOME AFFAIRS REFERENCE(S):          BCC2019/2515185

MEMBER:Ian Berry

DATE:6 January 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 06 January 2023 at 2:29pm

CATCHWORDS

MIGRATION – approval of a nomination – position of Other Sports Coach or Instructor – nominated occupation and its code correspond to a specified occupation – position did not include the majority of tasks – updated business information – tasks off the nominated position – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 140GB, 359
Migration Regulations 1994, rr 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 (DOHA) on 4 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 13 May 2019. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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.

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 position did not include the majority of tasks of the nominated position in ANZSCO which was Other Sports Coach or Instructor ANZSCO 452317.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 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, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

   Section 359(2) request for information

7. On 17 August 2022, the Tribunal wrote to the pursuant to s.359(2) of the Act, inviting the applicant to provide information, in writing, about which the following is relevant:

   “I am writing on instruction from the Member conducting the review, about the application for review made by Girchow Enterprises Pty Ltd (“the applicant”) in respect of a decision to refuse their application for approval of a nominated position under reg 2.72 of the Migration Regulations 1994 (the Regulations).

   In order for the Tribunal to approve the business nomination, it must be satisfied that all of the requirements in reg 2.72 of the Migration Regulations 1994 (the Regulations) and section 140GB of the Act are met at the time of its decision.

   The Tribunal now requires that the applicant to provide, in writing, updated and current information addressing these criteria. Accordingly, and without limiting the information that may be given, you or another person authorised by the applicant are invited to give the following information in writing. We have given examples of the type of the information you could provide:

   1.Information about the identity of any person authorised to speak and make decisions on behalf the applicant;

   ·If the applicant is a company or registered business, and ASIC company or business name extract ( the applicant is a company or registered business, current and historical information about its owners or officeholders’ registration details;

   ·An ASIC current and historical extract ( about the applicant directly operating an active and lawful business in Australia, including its financial circumstances;

   ·The applicant’s lodged tax returns for the last 2 full financial years, business activity statements that have been lodged with the ATO for the last 24 months and financial statements prepared in accordance with Australian accounting standards, including profit and loss statements and balance sheets, for the most recent 2 financial years.

   4.information about the applicant’s current organisational structure and where the nominated position sits in relation to that structure;

   ·An organisational structure chart that includes all the applicant’s current and proposed employees, their position title/duties and their immigration status (i.e. Australian citizen, permanent resident or temporary visa holder).

   5.Information about the roles and duties of the nominated position and how they correspond to the nominated occupation is position description in ANZSCO;

   ·Job descriptions, work samples, emails, correspondence and other

   ·examples of the daily tasks peformed in the nominated position, and also the nominated occupation’s position description in ANZSCO (go to and type the nominated occupation’s 6 digit ANZSCO code number into the ‘Search’ function).

   6.information about the terms and conditions of employment in the nominated position, including whether they are more all those favourable than those provided for an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, and whether the nominee will be employed on a full-time basis for at least 2 years with terms and conditions not expressly excluded the possibility of extension;

   ·A current employment contract in respect of the nominee or letter of engagement that complies with the relevant awards for the nominated position (if any).

   7.If the nominated position is not located in regional Australia and the applicant has paid the non—regional position application fee, information about:

   (a)    the need to employ the nominee in the nominated position; and

   (b)     the applicant’s business operating for at least 12 months and its recent training expenditure; or

   (c)    the applicant’s business operating for less than 12 months and its plan for future training expenditure.

   ·Invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, all records of investment in certain industry training funds or recognised industry bodies.

   8.If the nominated position is located in regional Australia, information about:

   (a)    The need to employ the nominee in the nominated position and why the position cannot be filled by an Australian citizen or permanent resident living in the same local area; and

   (b)     whether a specified Regional Certifying Body located in the same State or Territory as the nominated position has provided advice that:

   (i)     the terms and conditions of employment are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace; and

   (ii)    there is a genuine need to employ the nominated person as a paid employee to work in the nominated position under the applicant’s direct control; and

   (iii)the position cannot be filled by an Australian citizen or permanent resident living in the same area.

   ·Local job advertisements for the nominated position that were not successfully filled, and the Regional Certifying Body’s certificate issued to the applicant in respect of this position

   9.Information about whether the applicant has been subject to monitoring by the Department and, if relevant, the outcome of the monitoring audit;

   10.Information about whether the applicant has been the subject of any investigation about a possible contravention of the law.

   This information, in writing, should be received by 31 August 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   If you or another person authorised by the applicant cannot provide the information by 31 August 2022, you or another person authorised by the applicant may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us before 31 August 2022 and it must state the reason why the extension of time is required…

   If we do 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. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.…”

8. On 17 August 2022, the applicant’s migration representative stated that to the representative was on leave from 12 August 2022 to 21 August 2022 returning on 22 August 2022. On 30 August 2022, the representative requested an extension in providing the information requested by the Tribunal pursuant to s 359(2). The representative advised that the nominator is in the process of finalising financials for the year 2022 and require additional time for that information to be provided.

9. On 30 August 2022, the Tribunal confirmed that it would allow an extension of time to provide the information.  The extension was granted to 28 September 2022.  Again, confirming with the representative that should the information not be provided by all on 28 September 2020 to the applicant would lose an entitlement it might otherwise have to appear before the Tribunal to give evidence and present arguments.

10. The Tribunal did not receive any further communication from the representative who continued to represent the applicant.

    Information provided to the DOHA and Tribunal

11. The applicant provided to both the DOHA and the tribunal of the following:

    DOHA

    ·An advertisement by the applicant with an advertising period of 11 February to 10 March 2019.

    ·Details relating to CareerOne advertisement dated 10 December 2018.

    ·UFC Gym – evidence of equivalent terms and conditions of employment with attachments.

    ·Report of average sports instructor salary undated.

    ·Submission of Australian job outlook and in figure can send sports coaches, instructors and officials undated.

    ·Example of the salary of a kitesurfing instructor in Western Australia undated.

    ·Example of salary of HIIT 45 training coach undated.

    ·Undated submission relating to the nominee.

    ·Employment contract relating to the nominee for a two-year period subject to the nominee having his nomination granted, dated 8 May 2019.

    Tribunal

    ·The applicant did not provide any information or documentation concerning the nomination.

    Position must be genuine

12. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This 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 to determine whether it was genuine.

13. The nomination application refers to the responsibilities and main tasks of the nominee.  The responsibilities state that the nominated position is to provide customers with remarkable experience by observing safety standards.  The main tasks are for the nominated position is nominee to:

    ·Coach, train and instruct sports persons by analysing performances and developing their abilities.

    ·Planning and directing game strategies, developing play patterns and analysing game progress.

    ·Recruiting players another coaching staff.

    ·Promoting sports and skills development, and overseen the participation of young people in sport.

    ·Coordinate indirect in sporting activities.

14. ANZSCO describes the tasks relating to the nominated position:

    ·coaching, training and instructing sportspersons by analysing.  Performances and developing abilities.

    ·planning and directing game strategies, developing play patterns and analysing game progress.

    ·motivating sportspersons and supervising practice sessions.

    ·recruiting players and other coaching staff.

    ·arranging entries into sporting competitions.

    ·promoting sports and skills development, and overseeing the participation of young people in sport.

    ·officiating at sporting events to enforce rules.

    ·coordinating and directing sporting activities, and liaising with other officials to interpret and enforce rules and regulations relating to sport.

15. The applicant operates a UFC gym and has not provided any information as to the nominee’s role, other than providing a job description which is exactly the same as the ANZSCO tasks.  However, that job description does state:

    “UFC Gym does not only provide normal personal training and ordinary gymnastics service.  We provide specialised and tailored training to individuals and sports person, specialised in UFC related sports including martial arts, jujitsu,Muay Thai and other NMA inspired classes.  The nominee will provide ongoing training and coaching to our existing UFC trained members and customers in various sports techniques.”

16. This job description does not involve the majority of the ANZSCO tasks as it is more specialised in martial arts.  The applicant has not provided more specific examples which would include it in the majority of the tasks in ANZSCO.

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

18. 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

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

    Ian Berry
    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.