GMS Petroleum (Migration)
[2019] AATA 538
•12 March 2019
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
CATCHWORDS
MIGRATION – nomination – Amending Regulations – repeal of subclass 457 – no prescribed criteria against which nomination could be assessed – nomination application for a proposed occupation – lodged before 18 March 2018 – proposed applicant didn’t apply for Subclass 457 visa before 18 March 2018 – withdrawal of nomination – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GB, 140GBA, 353B(1)
Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018Migration 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 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.
The applicant was invited to a hearing scheduled for 23 January 2019, which was rescheduled to 5 March 2019 at the request of Mr Matar, who was to be overseas on that date. However, on 1 March 2019, the Tribunal received a letter from Mr Matar stating that he wished to withdraw the nomination as Customer Service Manager of Mr Jatoonah, and would not be attending the hearing.
A number of attempts were made to contact Mr Matar to ascertain whether Mr Matar was seeking to withdraw the application for review or only the nomination. However, as no response has been received to date, the Tribunal has proceeded to a decision. It is satisfied on the information before it that the application for the nomination was for a proposed occupation; that the application for the nomination was made before 18 March 2018; that the application for the nomination was in relation to a proposed applicant, Mr Jatoonah, for a Subclass 457 (Temporary Work (Skilled)) visa; but that Mr Jatoonah had not applied for a Subclass 457 (Temporary Work (Skilled)) visa before 18 March 2018.
Accordingly, the Tribunal is not satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision. Therefore, in complying with the guidance decision, there is not any prescribed criteria, at the time of this decision, against which the applicant’s nomination could be assessed and the nomination must be refused.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Wan Shum
Member
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