Growth Rocket Pty Ltd (Migration) - [2024] ARTA 241

Growth Rocket Pty Ltd (Migration) [2024] ARTA 241 (19 December 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Growth Rocket Pty Ltd
Respondent:  Minister for Home Affairs
Tribunal Number:  2216455

Tribunal:General Member Hoffman
Place:Perth
Date: 19 December 2024
Decision:The Tribunal sets aside the decision under review and remits the application for reconsideration, in accordance with the order that the nomination meets the following criteria:
reg 2.72(10) of the Regulations·

Statement made on 19 December 2024 at 3:16pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – health promotion officer – genuine position – nature of business and tasks of position – health promotion on behalf of not-for-profit organisations – position more than marketing and sales – nominee’s qualifications and experience – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT REASONS
APPLICATION FOR REVIEW
The Tribunal

On 10 November 2022, the applicant lodged an application for review of a decision made by a delegate of the Minister for Immigration. The application was lodged with the Administrative Appeals Tribunal (AAT).
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The decision under review
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 October 2022 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).
The applicant applied for approval on 26 August 2022. A 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. 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 Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72 (10)(a) because the delegate was not satisfied that the position associated with the nominated occupation was genuine.
Mr Joshua Jochheim appeared…

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.

Continue reading Growth Rocket Pty Ltd (Migration)

Details

AGLC: Growth Rocket Pty Ltd (Migration) [2024] ARTA 241
Case: [2024] ARTA 241
Decision Date: 19 December 2024

CaseChat Overview and Summary

Growth Rocket Pty Ltd applied for approval of the nomination of Mr Gabor Kovacs as a Health Promotion Officer under the Short-term stream of a Subclass 482 visa. The delegate of the Minister for Home Affairs refused the nomination on the basis that the position was not genuine. Growth Rocket challenged the decision before the Migration Review Tribunal, which set aside the delegate’s decision and remitted it for reconsideration. The key issue for the Tribunal was whether the nominated position of Health Promotion Officer was genuine and full-time, as required by the Migration Regulations. The Tribunal considered the nature of Growth Rocket’s business and the tasks associated with the Health Promotion Officer occupation. It found that the position involved more than just marketing and sales, as it included tasks such as raising awareness of healthy lifestyles and providing detailed information about health-related issues. The Tribunal also considered the qualifications and experience of Mr Kovacs, who held a bachelor’s degree in health promotion and had relevant experience in the field. The Tribunal concluded that the position was genuine and remitted the decision for reconsideration by the delegate.

The Tribunal noted that the requirement for a position to be genuine was a qualitative assessment, as upheld in Cargo First Pty Ltd v MIBP. The Tribunal also considered that the position must be full-time, unless it was reasonable to disregard this requirement. In this case, the Tribunal found that the position was genuinely that of a Health Promotion Officer, not just a marketing and sales role, and therefore met the requirements of the Regulations. The Tribunal further noted that the evidence showed that Mr Kovacs had the necessary qualifications and experience to perform the tasks of the position. As a result, the Tribunal decided to set aside the delegate’s decision and remit it for reconsideration, taking into account the evidence presented and the Tribunal’s findings.

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 set aside the decision under review and remit it for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the nominated position is genuine and full-time.Position must be genuine and full-time Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement 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 in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement. The applicant nominated Mr Gabor Kovacs for the occupation of Health Promotion Officer (ANZSCO 251911). The tasks associated with that occupation are as follows:UNIT GROUP 2519 OTHER HEALTH DIAGNOSTIC AND PROMOTION PROFESSIONALSThis unit group covers Health Diagnostic and Promotion Professionals not elsewhere classified. It includes Health Promotion Officers and Orthotists or Prosthetists.Indicative Skill Level:In Australia and New Zealand:Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).Registration or licensing may be required.Occupations:251911 Health Promotion Officer251912 Orthotist or Prosthetist251999 Health Diagnostic and Promotion Professionals nec251911 HEALTH PROMOTION OFFICERAlternative Titles:Community Health WorkerHealth EducatorAssists health and community groups to improve the health of individuals and the community by raising awareness of healthy lifestyles, disease and disability, and other health-related issues.Skill Level: 1Specialisations:Asthma EducatorChildbirth EducatorDiabetes Educator As described by Mr Jochheim, the business operated by Growth Rocket Pty Ltd is essentially a marketing and sales business. A significant proportion of its business involves operating kiosks in shopping centres, and at special events, such as shows and expos. By way of example, a not-for-profit organisation such as the Royal Life Saving Society (RLS) might have a kiosk in a shopping centre, to encourage people to join the organisation and/or buy lottery tickets. The profits from the latter would be used by RLS to buy equipment. RLS does not have the personnel to staff a kiosk and/or who would have the skills to engage members of the public. Rather, it would be staffed by employees of Growth Rocket who would market RLS on behalf of RLS. Growth Rocket would be paid a fee for doing this. Mr Jochheim said that when a not-for-profit is looking for a business to promote it, while cost is a factor, so is any additional service that can be provided. He explained that as well as members of the general public willing to enrol as a member or buy a lottery ticket, there can be other members of the general public who approach the kiosk wanting more detailed information about RLS and the programs it offers in the areas of health and safety around water. Based on RLS’s website, it offers online and face to face training in first aid and resuscitation.

Decision

Reasons for decision

The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.The decision under review This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 October 2022 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). The applicant applied for approval on 26 August 2022. A 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. 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 Short-term stream. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72 (10)(a) because the delegate was not satisfied that the position associated with the nominated occupation was genuine. Mr Joshua Jochheim appeared before the Tribunal on behalf of the applicant business on 19 December 2024 to give evidence and present arguments. Mr Joccheim said that he had legal representation in relation to this matter. His representative did not attend the hearing. For the following reasons, the Tribunal has decided to set aside the decision under review and remit it for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the nominated position is genuine and full-time.Position must be genuine and full-time Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement 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 in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement. The applicant nominated Mr Gabor Kovacs for the occupation of Health Promotion Officer (ANZSCO 251911). The tasks associated with that occupation are as follows:UNIT GROUP 2519 OTHER HEALTH DIAGNOSTIC AND PROMOTION PROFESSIONALSThis unit group covers Health Diagnostic and Promotion Professionals not elsewhere classified. It includes Health Promotion Officers and Orthotists or Prosthetists.Indicative Skill Level:In Australia and New Zealand:Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).Registration or licensing may be required.Occupations:251911 Health Promotion Officer251912 Orthotist or Prosthetist251999 Health Diagnostic and Promotion Professionals nec251911 HEALTH PROMOTION OFFICERAlternative Titles:Community Health WorkerHealth EducatorAssists health and community groups to improve the health of individuals and the community by raising awareness of healthy lifestyles, disease and disability, and other health-related issues.Skill Level: 1Specialisations:Asthma EducatorChildbirth EducatorDiabetes Educator

Ratio Decidendi

Legal Principle Established

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