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 asideLEGISLATION
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 30STATEMENT 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 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).
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.
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.
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.
The applicant was represented in relation to the review and the representative also attended the hearing.
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…
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CaseChat Overview and Summary
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
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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).