Indo Pak Meats Pty Ltd (Migration) - [2024] AATA 342

Indo Pak Meats Pty Ltd (Migration) [2024] AATA 342 (14 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Indo Pak Meats Pty Ltd
REPRESENTATIVE:  Mr James Coelho
CASE NUMBER:  2103509
HOME AFFAIRS REFERENCE(S):          BCC2020/1493715
MEMBER:SM Michael Cooke
DATE:14 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 14 February 2024 at 1:20pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Butcher or Smallgoods Maker – genuine position – additional information submitted – key role of the visa applicant – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 Home Affairs on 15 March 2021 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 6 May 2020. 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 position associated with the nominated occupation was found not to be genuine.
The applicant’s spokesperson (Ms Seema Dilnawaz) appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (Mr Ashraf).
The applicant was represented in relation to the review and the representative (Mr Coelho) attended the hearing.
The representative has provided a significant amount of additional information to the Tribunal rebutting the delegate’s finding regarding reg 2.72(10)(a).
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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 work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to…

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

AGLC: Indo Pak Meats Pty Ltd (Migration) [2024] AATA 342
Case: [2024] AATA 342
Decision Date: 14 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a nomination dispute involving Indo Pak Meats Pty Ltd and the Minister for Immigration. The core of the disagreement concerned the approval of a nominated position for a Butcher or Smallgoods Maker under the Short-term stream. The Tribunal was tasked with determining whether the nomination met the various legislative requirements for approval.

The legal issues before the Tribunal included whether the nominated position was genuine and full-time, whether the nominated occupation and its code corresponded to a specified occupation in the relevant instrument, and whether the nominator was a standard business sponsor who had paid any outstanding debts. Additionally, the Tribunal had to assess whether there was any adverse information known to Immigration about the applicant or associated persons, and whether the nomination process itself had been followed in accordance with the regulations.

The Tribunal's reasoning focused on a detailed examination of each regulatory requirement. It found that the nominated occupation, Butcher or Smallgoods Maker (351211), was specified in the relevant instrument and was not subject to any applicability conditions. The Tribunal also applied the principles from *Cargo First Pty Ltd v MIBP* [2016] FCA 30 to qualitatively assess the genuineness of the position. Crucially, the Tribunal found no evidence of adverse information, outstanding debts, or non-compliance with the prescribed nomination process. It also noted that certain requirements related to existing Subclass 457 or 482 visa holders did not apply in this instance as the nominee was not such a visa holder.

Based on its findings that all applicable regulatory criteria were met, the Tribunal decided to set aside the original decision under review and substitute it with a decision approving the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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 work sponsor and meets the requirements in reg 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. In addition, the labour market testing requirements in s 140GBA must be met.The nomination must comply with the prescribed process Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.Findings and reasons about whether the process in reg 2.73 was followed considering the matters below. ·The person is nominating an occupation under s 140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or a proposed applicant for a Subclass 482 visa: reg 2.73(1);·The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);·The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);·The nomination is in the Short-term stream if the occupation is a short term specified skilled occupation, or the Medium term stream if the occupation is a medium and long term strategic skills specified occupation: reg 2.73(6);·The applicant has identified the nominee in the nomination: reg 2.73(8);·The nomination includes the name of the occupation and the corresponding 6 digit code, the location/s at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination, and any other specified information: reg 2.73(9);·The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);·The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, unless the occupation is exempt: reg 2.73(13);·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code; and, unless the occupation is exempt that the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14). The Tribunal finds form the evidence on file that the requirements of reg 2.72(3) are met.No adverse information known to Immigration.

Ratio Decidendi

Legal Principle Established

The Tribunal finds form the evidence on file that the requirements of reg 2.72(3) are met.No adverse information known to Immigration. Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. The Tribunal finds no evidence there is any adverse information known to Immigration about the applicant or a person associated with the applicant. For these reasons the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The Tribunal finds that the person is a standard business sponsor. For these reasons the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. The Tribunal has no evidence of any outstanding debt under s 140ZO. For these reasons the requirements of reg 2.72(5A) are met.Requirements for existing Subclass 457 or Subclass 482 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14). As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.Specified occupation. Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made. The occupation must also apply to the nominee in accordance with the instrument. The Tribunal finds that the nominated occupation and its 6-digit code (Butcher or Smallgoods Maker – 351211) correspond to an occupation and 6-digit code specified in the relevant instrument. The nominated occupation is not subject to any applicability conditions specified in the relevant Instrument. For these reasons the requirements of reg 2.72(8) are met.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.