GMS Petroleum (Migration) - [2019] AATA 538

GMS Petroleum (Migration) [2019] AATA 538 (12 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  GMS Petroleum
CASE NUMBER:  1707989
HOME AFFAIRS REFERENCE(S):           BCC2016/3169101
MEMBER:Wan Shum
DATE:12 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 12 March 2019 at 3:42pm

LEGISLATION
Migration Act 1958, ss 65, 140GB, 140GBA, 353B(1)
Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2 rr 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 March 2017 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 23 September 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. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination and the applicant has sought review of that decision. The applicant was represented by a registered migration agent, but on 9 March 2018, the Tribunal was informed that the applicant wished to appoint a new authorised recipient and representative, Mr Laba Sarkis.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2).
On 2 November 2018, the Tribunal wrote to the applicant regarding the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (the Amending Regulations) which repealed the subclass 457 (Temporary Work (Skilled)) visa and repealed and replaced r.2.72 of the Migration Regulations 1994. The letter referred to a Tribunal guidance decision, B&G Green Trading Pty Ltd (Migration) [2018] AATA 3190, which applies where the nomination application was for a proposed occupation, the nomination application was made before 18 March 2018 in relation to a proposed applicant for a Subclass 457 visa, but where the proposed visa applicant did not apply for the Subclass 457 visa before 18 March 2018. The applicant was advised that as a result of the Amending Regulations, there was determined to be no prescribed criteria against which their nomination could be assessed and that the application for approval of the nomination must be refused (a link to the decision was provided).
The applicant was also advised that on 5 September 2018, pursuant to a direction under section 353B(1) of the Act, the aforementioned guidance…

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.

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Details

Case: [2019] AATA 538
Decision Date: 12 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a dispute between GMS Petroleum and the Department of Home Affairs concerning a nomination application. The core of the disagreement was whether GMS Petroleum's nomination for a proposed occupation, lodged before 18 March 2018, should be approved, particularly given that the proposed visa applicant did not apply for the Subclass 457 visa before that date.

The legal issue before the Tribunal was to determine if GMS Petroleum met the criteria for approval of its nomination under section 140GB(2) of the Migration Regulations 1994, in light of the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. These amendments repealed the Subclass 457 visa and significantly altered the relevant regulations, creating a situation where, for certain applications lodged before the repeal but where the visa application was not, there were no prescribed criteria against which the nomination could be assessed.

The Tribunal reasoned that the Amending Regulations, coupled with a binding guidance decision (B&G Green Trading Pty Ltd (Migration) [2018] AATA 3190), dictated the outcome. The Tribunal had been directed to comply with this guidance decision when specific circumstances were present: a nomination for a proposed occupation lodged before 18 March 2018, in relation to a proposed Subclass 457 visa applicant who had not applied for that visa before 18 March 2018. The Tribunal found that GMS Petroleum's nomination met all these criteria. Despite GMS Petroleum's submission that its case was distinguishable due to the genuineness of the position and business needs, the Tribunal concluded that the facts and circumstances were the same as those in the guidance decision.

Consequently, the Tribunal affirmed the decision under review to refuse the nomination. The Tribunal found that, due to the repeal of the Subclass 457 visa and the absence of prescribed criteria for assessment under the amended regulations for this specific scenario, the nomination could not be approved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). On 2 November 2018, the Tribunal wrote to the applicant regarding the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (the Amending Regulations) which repealed the subclass 457 (Temporary Work (Skilled)) visa and repealed and replaced r.2.72 of the Migration Regulations 1994. The letter referred to a Tribunal guidance decision, B&G Green Trading Pty Ltd (Migration) [2018] AATA 3190, which applies where the nomination application was for a proposed occupation, the nomination application was made before 18 March 2018 in relation to a proposed applicant for a Subclass 457 visa, but where the proposed visa applicant did not apply for the Subclass 457 visa before 18 March 2018. The applicant was advised that as a result of the Amending Regulations, there was determined to be no prescribed criteria against which their nomination could be assessed and that the application for approval of the nomination must be refused (a link to the decision was provided). The applicant was also advised that on 5 September 2018, pursuant to a direction under section 353B(1) of the Act, the aforementioned guidance decision must be complied with by the Tribunal when reaching a decision on review under s.140GB(2) to refuse to approve a nomination were all of the following circumstances are present: ·the nomination was for a proposed occupation; and·the nomination approval application was made before 18 March 2018; and·the nomination was in relation to a proposed applicant for a subclass 457 (Temporary Work (Skilled)) visa; and ·the proposed visa applicant did not apply for a Subclass 457 (Temporary Work (Skilled)) visa before 18 March 2018 The applicant was then advised that the information before it indicated that: ·their nomination application was for a proposed occupation; and·the nomination application was made/lodged before 18 March 2018; and·the nomination was in relation to a proposed applicant, Mr Neroo Jatoonah, for a Subclass 457 (Temporary Work (Skilled)) visa; and ·that Mr Jatoonah did not apply for a Subclass 457 (Temporary Work (Skilled)) visa before 18 March 2018 The applicant was then advised this information was relevant to the review because it may lead the Tribunal to find the facts and circumstances of their case are the same as the guidance decision and that the application for approval must be refused. The applicant was requested to respond in writing by 16 November 2018. On 16 November 2018, the applicant responded to the Tribunal’s letter and stated that it was distinguishable from B&G Green Trading because the position is genuine and the business needs the nominee.

Decision

Reasons for decision

Accordingly, the decision under review must be affirmed. DECISION The Tribunal affirms the decision not to approve the nomination.Wan ShumMember

Ratio Decidendi

Legal Principle Established

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