H L Group Engineering Pty Ltd (Migration)
[2019] AATA 1153
•13 May 2019
H L Group Engineering Pty Ltd (Migration) [2019] AATA 1153 (13 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: H L Group Engineering Pty Ltd
CASE NUMBER: 1826275
HOME AFFAIRS REFERENCE(S): BCC2018/1016906
MEMBER:Karen McNamara
DATE:13 May 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 13 May 2019 at 11:15am
CATCHWORDS
MIGRATION – nomination – not a genuine position – Accountant (General) (ANZSCO 221111) – tasks don’t align with nominated occupation – no response to tribunal communication – legislative reform – tribunal decision based on different ground – does not hold a Subclass 457 visa – no evidence of current pending application for a Subclass 457 – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 140GB, 140GBA, 359, 360, 363
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, rr 2.72, 2.73CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2018 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 3 March 2018. 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. 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.
A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicant was represented in relation to the review by its registered migration agent.
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). 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.
Background
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation was genuine, therefore the applicant did not meet r.2.72(10) (f).
Position must be genuine
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 in order to determine whether it was genuine.
The applicant (H L Group Engineering Pty Ltd) lodged the nomination for approval on 3 March 2018. The nominated position was for an Accountant (General) (ANZSCO 221111).
The delegate considered the information provided in support of the nomination application and found that the nominated occupation of Accountant (General) (ANZSCO 221111) would be inconsistent with the nature of the business operated by the applicant.
The delegate was not satisfied that in the context of the applicant’s business that a significant majority of the tasks that the nominee is actually likely to perform align substantially with the tasks of the nominated occupation. The delegate noted that the duties listed in the employment contract provided by the applicant showed that the nominee did not hold the appropriate level of responsibility for an Accountant (General) (ANZSCO 221111.
Given these concerns as well as the relatively high number of proposed Accountants within the applicant’s business and lack of Account Clerks/Bookkeepers and other administrative staff, the delegate was not satisfied that the position would be regularly performing a significant majority of the duties of the nominated occupation.
The delegate therefore found that the position associated with the nominated occupation was not genuine and the applicant did not satisfy r.2.72(10)(f) and therefore did not meet r.2.72(10).
The Tribunal notes the applicant’s submission dated 9 September 2018, in response to the delegate’s decision of 4 September 2018 and in this instance has placed little weighting on this information as the Tribunal has made a decision based on a different ground to that made by the delegate. This is discussed further below and is due to recent legislative reforms that impact on this matter. The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced on 18 March 2018. One of the changes was that the Subclass 457 visa program was repealed and closed to new applications from that date.
On the 19 March 2019, the Tribunal invited the applicant via it’s registered migration agent in accordance with s.359(A) of the Act, to provide additional information in respect of their matter as set out below.
“... In conducting the review, we are required by the Migration Act 1958 to invite you to
comment on or respond to certain information which we consider would, subject to
your comments or response, be the reason, or a part of the reason, for affirming the
decision under review.The particulars of the information are:
- It is a requirement for approval of the nomination that you have identified the visa
holder, applicant or proposed applicant for the visa who will work in the nominated
occupation. This requirement is in r.2.72(5) of the Migration Regulations 1994 as it
applies to your case.- A review of your file and Departmental records suggests that the person you
identified does not hold a Subclass 457 (Temporary Work (Skilled)) visa and they
do not have an application for a Subclass 457 (Temporary Work (Skilled)) that is
yet to be decided by the Department of Home Affairs or the Tribunal.- The Migration Amendment (Temporary Skill Shortage visa and Complementary
Reforms) Regulations 2018 commenced 18 March 2018. As a result, the Subclass
457 visa program was repealed and closed to new applications from that date onwards.- The Subclass 482 (Temporary Skills Shortage) visa that commenced on 18 March
2018 is not compatible with a nomination application made before then, meaning that
a Subclass 482 (Temporary Skills Shortage) visa holder cannot be relied upon to
satisfy r.2.72(5) as it applies in your case.”
The applicant was advised that this information is relevant to the review because it suggest that the person identified as the proposed visa applicant does not hold, and is unable to be granted, the type of visa required to work in the nominated occupation.
The applicant was invited to respond to this information in writing by 2 April 2019. The applicant was advised if the information was not provided in writing by 2 April 2019, or if the applicant has not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information, and further, the applicant would lose any entitlement it might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
The Tribunal did not receive any response from or on behalf of the applicant at the date and time of this decision. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets all of the requirements of r.2.72(5) of the Regulations is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already and the significance of the information or documents to the applicant.
The Tribunal has regard to the fact that the nomination application was refused by the Department on 4 September 2018. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for over six months of the reasons for the nomination application refusal. The Tribunal wrote to the applicant under s.359(A) of the Act inviting the applicant to provide information. The applicant has failed to provide requested information within the prescribed period set for this purpose and nor has any request been received to extend the time to provide requested documentation.
In these circumstances, the Tribunal considers the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of reg. 2.72(5). The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act.
Identification of the nominee
The person identified for the nominated occupation of Accountant (General) (ANZSCO 221111) Zheng Zong, does not hold a Subclass 457 (Temporary Work (Skilled)) visa and there is no evidence before the Tribunal that the applicant has a current application for a Subclass 457 (Temporary Work (Skilled)) that is yet to be decided by the Department of Home Affairs or the Tribunal.
The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced on 18 March 2018. As a result, the Subclass 457 visa program was repealed and closed to new applications from that date.
The Subclass 482 (Temporary Skills Shortage) Visa that commenced on 18 March 2018 is not compatible with a nomination application made before then, meaning that a Subclass 482 (Temporary Skills Shortage) Visa holder cannot be relied upon to satisfy r.2.72(5) because the nomination in this case was applied for on 3 March 2018.
In conclusion, the person identified as the proposed applicant, (Zheng Zong), does not hold, and is unable to be granted, the type of visa required to work in the nominated occupation.
Therefore, the Tribunal finds that the person identified in the nomination will not work in the nominated occupation.
For these reasons the requirements of r.2.72(5) are not met.
The Tribunal is satisfied the nomination approval application was for a proposed occupation; that the nomination application was made/lodged before18 March 2018; that the nomination approval application was in relation to a proposed applicant for a Subclass 457 (Temporary Work (Skilled)) Visa; and that there was now no (outstanding) proposed visa applicant who had applied for a Subclass 457 (Temporary Work Skilled) Visa before 18 March 2018.
Accordingly, the Tribunal is satisfied there is now not any prescribed criterion against which the applicant’s nomination could be assessed and that the nomination approval must be refused.
For the reasons given above, as s.140GB(2) is conditional on an assessment of the prescribed criteria, the nomination cannot be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Karen McNamara
MemberATTACHMENT - 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.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Statutory Construction
-
Procedural Fairness
-
Jurisdiction
0