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 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 PROFESSIONALS
This 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 Officer
251912 Orthotist or Prosthetist
251999 Health Diagnostic and Promotion Professionals nec

251911 HEALTH PROMOTION OFFICER
Alternative Titles:
Community Health Worker
Health Educator

Assists 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: 1
Specialisations:
Asthma Educator
Childbirth Educator
Diabetes 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.
Mr Jochheim also gave the example of the Returned and Services League of Australia which has a similar acronym, RSL. Members of the public might approach an RSL kiosk to buy lottery tickets which could be managed by a salesperson, but others might be asking for advice on behalf of relatives suffering from post-traumatic stress disorder, having served in the defence forces. It was for this kind of situation that a Health Promotion Officer was required.
In a letter to the Department dated 24 August 2022, Mr Jochheim wrote that the nominee “had enormous success in a 3-year campaign raising awareness of post-traumatic stress disorder on behalf of [the RSL], promoting the importance of a healthy mind, and the great support that the Mates4Mates program provides for our veterans”.
Mr Joccheim described the nominee’s role as being able to provide this additional service of providing more in-depth health advice. Whereas the other sales or marketing employees would not necessarily have that knowledge or expertise, the nominee did. Growth Rocket did not charge its clients specifically for that service, but the fact of that service being available gave Growth Rocket an advantage over its competitors when trying to attract new clients.
Mr Joccheim drew the Tribunal’s attention to an information sheet provided by Vetassess about a Health Promotion Officer (ANZSCO 251911). Under the heading Employment Information, it stated:
Generally the Health Promotion Officer assists health and community groups to improve the health of individuals and the community. Health Promotion Officers are often employed in local, state and federal government, not-for-profit organisations, health agencies and community services institutes.
The Tribunal understood from Mr Joccheim’s evidence that some not-for-profit clients could not afford to employ a Health Promotion Officer themselves. The nominated position fulfilled that role on behalf of the client. That is, although employed by Growth Rocket, the role of the nominated position was to provide education, support and information about the health or related services offered by the client organisation.
The Tribunal put this to Mr Joccheim who confirmed that was broadly the case. The nominee was employed by Growth Rocket to do Health Promotion Work for the client. Based on the letter of 22 August 2022, part of that task was to identify and effectively engage with sectors of the community and how to reach them whether they be the most in need, the most resistant or the most easily engaged.
According to his visa application form, the nominee Mr Kovacs has a bachelor’s degree in recreation management and health promotion from the University of West Hungary. He has also obtained a diploma of leadership and management while in Australia.
Mr Kovacs wrote that he has been employed by the applicant since 5 June 2018. He described his current position as Heath Promotion Leader and his duties as follows:
Brainstorm health initiatives, plan health promotion programs, engage with the community, raise awareness, partner with community organizations, etc.
The Tribunal also had regard as to how the nominated position of Health Promotion Officer was advertised. Amongst other things, the lengthy job advertisement stated:
Identify specific information that needs to be communicated to maximise the impact of community engagement efforts (eg We are currently working with Royal Life Saving, which necessitates a detailed understanding of topics such as cardiopulmonary resuscitation, surf and weather conditions, best-practice swim classes, the role and function of partners such as Swimming Australia, etc.)
The Tribunal is satisfied that the nominated position is more than a marketing/sales role although that is main business of Growth Rocket Pty Ltd. It is satisfied that the Health Promotion Officer position as nominated by the applicant business is a genuine position and that the duties of the nominated position align with those listed in ANZSCO 251911.
Mr Jochheim confirmed that the position is full-time.
For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(10) are met.
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

Date of hearing: 19 December 2024

Representative for the Applicant: Mr Adam Welch
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)…

Date of hearing:	19 December 2024
Representative for the Applicant:	Mr Adam Welch