IT&T Pty Ltd (Migration)

Case [2024] AATA 2399


IT&T Pty Ltd (Migration) [2024] AATA 2399 (6 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  IT&T Pty Ltd

REPRESENTATIVE:  Mr Imran Khan (MARN: 1680646)

CASE NUMBER:  2110565

HOME AFFAIRS REFERENCE(S):          BCC2020/2331451

MEMBER:Penelope Hunter

DATE:6 June 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 06 June 2024 at 3:39pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – ICT security specialist – combined hearing with visa review – adverse information about nominee accepted as incorrect – contract of employment not provided with application, claimed to have been provided later but no record of this – contract provided with review application – genuine position – nominee’s qualifications, skills and experience, size and scope of business, and tasks and importance of position – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA, 359(2), 359AA
Migration Regulations 1994 (Cth), r 2.72(11)

CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 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).

  2. The applicant applied for approval on 18 September 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 Medium-term stream.

  3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(11) because the delegate was not satisfied that the applicant would engage the nominee on a written contract of employment.

  4. Mr Serge Niazi, director, appeared on behalf of the applicant company before the Tribunal on 12 April 2024 to give evidence and present arguments. The hearing was combined with the review application for the visa nominee, Ms Ivana Taleska. Ms Taleska also provided oral evidence to the Tribunal.

  5. The applicant was represented in relation to the review and the representative also attended the hearing.

  6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    BACKGROUND

  7. The applicant company is situated in Wollongong and has been operating for over twenty years. Through its business it…

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AGLC
IT&T Pty Ltd (Migration) [2024] AATA 2399
Case
[2024] AATA 2399
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning IT&T Pty Ltd's application for approval of a nomination for an ICT Security Specialist position under the medium-term stream. The applicant company, a provider of information technology and telecommunication services, sought to sponsor Ms. Ivana Taleska for this role. The Tribunal considered various documents, including company financial records, tax returns, an organisational chart, the position description, relevant occupational classifications and awards, salary data, and evidence relating to Ms. Taleska's visa history and qualifications.

The primary legal issues before the Tribunal were whether the nominated position was genuine, whether the applicant company had provided sufficient evidence to satisfy the requirements of the Migration Regulations 1994, and whether any adverse information known to Immigration could be disregarded. Specifically, the Tribunal had to determine if the applicant met the criteria relating to standard business sponsorship, payment of debts, and the genuineness and full-time nature of the nominated position, as well as address any adverse information flagged in the Department's records concerning the nominee.

The Tribunal found that the applicant company was a standard business sponsor and had paid any applicable debts. Crucially, the Tribunal accepted the evidence of the applicant's representative and Ms. Taleska that the adverse information regarding a previous nomination for a different role was incorrect and that the current position was genuine. The Tribunal was satisfied that the position description, the company's size and scope, and the nominee's qualifications and experience supported the genuineness of the ICT Security Specialist role. The Tribunal also considered the relevant ANZSCO classification and award rates to ensure the nominated position and proposed employment conditions met regulatory requirements.

Consequently, the Tribunal set aside the original decision not to approve the nomination and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.BACKGROUND The applicant company is situated in Wollongong and has been operating for over twenty years. Through its business it provides information technology and telecommunication services to a range of small to medium business customers. It is seeking approval to sponsor the nominee in the position of ICT Security Specialist. CONSIDERATION OF CLAIMS AND EVIDENCE In addition to the evidence of Mr Niazi and Ms Taleska, and the material on the Department file the Tribunal has received the following additional documents:i.Written submissions of the applicant company’s representative dated 14 October 2021.ii.Employment contract between the applicant company and Ms Taleska dated 1 August 2020. iii.Department notification of the approval of the applicant company as a standard business sponsor dated 26 October 2021. iv.Written submission of the applicant company’s representative addressing the criteria requested in the Tribunals invitation dated 8 November 2023. v.An ASIC Current & Historical Company Extract for the applicant company. vi.Current details for ABN 86 112 595 427. vii.2022 and 2021 Company Tax Return for the applicant company. viii.Financial report for the applicant for the year ending 30 June 2022. ix.Business Activity Statements (BAS) July 2021 - June 2023.x.Organisational Chart October Quarter 2023.xi.Position description ICT Security Specialist. xii.1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.xiii.Fair Work Ombudsman Award Pay Guide – Professional Employees Aware - 15 September 2023.xiv.Professional Employees Award 2020.xv.Job Outlook ICT Security Specialists – Labour Market Insights.xvi.Online extract - Payscale Salary Survey – Average Security Administrator, IT Salary in Australia in 2023.xvii.Sample recruitment posted on - Information Security Specialist Job in Redcliffe, Brisbane QLD and Cyber Security Solutions Specialist Job in Perth WA.xviii.Sample recruitment posted on - ICT Security Specialist - Sydney NSW 2000.xix.Employment Contract between the applicant company and Ivana Taleska dated 12 October 2023. xx.Student (TU 572) visa grant notice of Ivana Taleska dated 21 December 2015. xxi.Temporary Work (Skilled) (Subclass 457) visa grant of Ivana Taleska on 15 November 2018. xxii.Letter of Acknowledgement of Temporary Skill Shortage (Medium Term) (subclass 482) visa application Received on 24 September 2020 for Ivana Taleska.xxiii.Bridging Visa Grant Notification Received on 24 September 2020 for Ivana Taleska.xxiv.Ivana Taleska IELTS Test Report Form, 27 October 2018. xxv.Republic of Macedonia passport of Ivana Taleska valid to 16 October 2024. xxvi.PAYG Payment Summary of Ivana Taleska for the period 1/07/2017 to 30/06/2018.xxvii.SAF Levy Receipt dated 18 September 2020. xxviii.Accountant’s letter dated 17 April 2024. xxix.Company Income Tax Return for the year ended 30 June 2023. xxx.Financial Report for the year ending 30 June 2023. xxxi.Income Activity Statement July 2023, August 2023, October 2023, November 2023, January 2024 and February 2024. xxxii.BAS September 2023 and December 2023.

Evidence

Evidence Before The Court

The applicant company is situated in Wollongong and has been operating for over twenty years. Through its business it provides information technology and telecommunication services to a range of small to medium business customers. It is seeking approval to sponsor the nominee in the position of ICT Security Specialist. CONSIDERATION OF CLAIMS AND EVIDENCE In addition to the evidence of Mr Niazi and Ms Taleska, and the material on the Department file the Tribunal has received the following additional documents:i.Written submissions of the applicant company’s representative dated 14 October 2021.ii.Employment contract between the applicant company and Ms Taleska dated 1 August 2020. iii.Department notification of the approval of the applicant company as a standard business sponsor dated 26 October 2021. iv.Written submission of the applicant company’s representative addressing the criteria requested in the Tribunals invitation dated 8 November 2023. v.An ASIC Current & Historical Company Extract for the applicant company. vi.Current details for ABN 86 112 595 427. vii.2022 and 2021 Company Tax Return for the applicant company. viii.Financial report for the applicant for the year ending 30 June 2022. ix.Business Activity Statements (BAS) July 2021 - June 2023.x.Organisational Chart October Quarter 2023.xi.Position description ICT Security Specialist. xii.1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.xiii.Fair Work Ombudsman Award Pay Guide – Professional Employees Aware - 15 September 2023.xiv.Professional Employees Award 2020.xv.Job Outlook ICT Security Specialists – Labour Market Insights.xvi.Online extract - Payscale Salary Survey – Average Security Administrator, IT Salary in Australia in 2023.xvii.Sample recruitment posted on - Information Security Specialist Job in Redcliffe, Brisbane QLD and Cyber Security Solutions Specialist Job in Perth WA.xviii.Sample recruitment posted on - ICT Security Specialist - Sydney NSW 2000.xix.Employment Contract between the applicant company and Ivana Taleska dated 12 October 2023. xx.Student (TU 572) visa grant notice of Ivana Taleska dated 21 December 2015. xxi.Temporary Work (Skilled) (Subclass 457) visa grant of Ivana Taleska on 15 November 2018. xxii.Letter of Acknowledgement of Temporary Skill Shortage (Medium Term) (subclass 482) visa application Received on 24 September 2020 for Ivana Taleska.xxiii.Bridging Visa Grant Notification Received on 24 September 2020 for Ivana Taleska.xxiv.Ivana Taleska IELTS Test Report Form, 27 October 2018. xxv.Republic of Macedonia passport of Ivana Taleska valid to 16 October 2024. xxvi.PAYG Payment Summary of Ivana Taleska for the period 1/07/2017 to 30/06/2018.xxvii.SAF Levy Receipt dated 18 September 2020. xxviii.Accountant’s letter dated 17 April 2024. xxix.Company Income Tax Return for the year ended 30 June 2023. xxx.Financial Report for the year ending 30 June 2023. xxxi.Income Activity Statement July 2023, August 2023, October 2023, November 2023, January 2024 and February 2024. xxxii.BAS September 2023 and December 2023.

Decision

Reasons for decision

For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.DECISION The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.Penelope HunterMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 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)…

Ratio Decidendi

Legal Principle Established

For these reasons 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 company 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. Mr Niazi claimed that he was not aware of any adverse information. The Tribunal has reviewed Immigration electronic case management records in relation to the application and it is noted that the applicant company is flagged as a “client of interest” as the nominee, Ms Taleska was recorded as being nominated for a Café or Restaurant Manager with another sponsor. The Tribunal discussed this information with Mr Niazi and Ms Taleska separately pursuant to the provisions of s 359AA of the Act. Mr Niazi told the Tribunal that he was unaware of such information, he maintained that the position for the Ms Taleska was genuine. In her evidence to the Tribunal, Ms Taleska claimed that she had never worked as a Café or Restaurant Manager and was unaware of any previous nomination application. She maintained strenuously that the information was incorrect and that she had only ever sought to be nominated in her current position. The Tribunal accepts the evidence of Mr Niazi and Ms Taleska. It does not consider the information adverse and is satisfied as set out below that the position for the nominee is genuine. The Tribunal is not aware of any other adverse information regarding the applicant company or any person associated with the applicant company. 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 evidence before the Tribunal is that the applicant company was most recently approved as a standard business sponsor on 26 October 2021 with effect until 26 October 2026. 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. There is no evidence that the applicant company owes any debt of the kind mentioned in s.140ZO of the Act, which refers to a nomination training contribution charge debt or a penalty in relation to the underpayment of such a charge. Mr Niazi also confirmed to the Tribunal that he was not aware of any debt. 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).