J.S. T-SHIRT PTY. LIMITED (Migration)

Link copied
Case Copied 21 min read

J.S. T-SHIRT PTY. LIMITED (Migration) [2024] AATA 3894 (19 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  J.S. T-SHIRT PTY. LIMITED

REPRESENTATIVE:  Ms Rong Zhang (MARN: 0426182)

CASE NUMBER:  2119646

HOME AFFAIRS REFERENCE(S):          BCC2021/2043861

MEMBER:Sheridan Aster

DATE:19 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 19 September 2024 at 12:14pm

CATCHWORDS
MIGRATION – nomination – no adverse information – position associated with the nominated occupation is genuine – labour market testing was undertaken in the specified period – no less favourable terms and condition of employment –  decision under review set aside 

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73

CASES
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 8 December 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. J.S. T-Shirt Pty Ltd supplies uniforms, sportswear, and corporate merchandise. The company applied for approval to nominate Kaicheng Shen to work on the occupation of Accountant (General) on 27 October 2021. 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 reg 2.72(10)(a), which requires the position associated with the occupation to be genuine.

  4. Sales and Finance Manager, Liwen Li (Raymon), appeared before the Tribunal on 11 September 2024 to give evidence and present arguments on behalf of J.S. T-Shirt Pty Ltd. The Tribunal also received oral evidence from the nominee, Mr Shen, tax agent Jeffrey Todd and customer Darren Sweeney.

  5. 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

  6. 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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read J.S. T-SHIRT PTY. LIMITED (Migration) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2024] AATA 3894
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a nomination made by J.S. T-Shirt Pty Limited for a Subclass 482 visa. The core dispute revolved around whether the applicant met the criteria for the approval of this nomination, as required by section 140GB(2) of the Migration Act 1958 and regulation 2.72 of the Migration Regulations 1994. The Tribunal was tasked with determining if the nomination complied with the prescribed processes and if J.S. T-Shirt Pty Limited satisfied all relevant sponsorship and employment conditions.

The Tribunal was required to assess several specific criteria under the Migration Regulations. These included whether the nomination was made in accordance with the prescribed process (regulation 2.72(3) and regulation 2.73), whether there was any adverse information known to Immigration about the applicant or associated persons (regulation 2.72(4)), and whether the nominator was a standard business sponsor (regulation 2.72(5)). Further, the Tribunal had to consider if any debts had been paid in full (regulation 2.72(5A)), if the nominated occupation and its code corresponded to a specified occupation under the relevant legislative instrument (regulation 2.72(8)), and if the position associated with the occupation was genuine and full-time (regulation 2.72(10)). The Tribunal also examined whether the employment conditions offered to the nominee were no less favourable than those for an Australian citizen or permanent resident performing equivalent work (regulation 2.72(18)).

In its reasoning, the Tribunal systematically addressed each regulatory requirement. It found that J.S. T-Shirt Pty Limited had complied with the procedural requirements for making the nomination, including using the approved form, paying the correct fee, and providing all necessary certifications. The Tribunal inferred from the departmental file that no adverse information was known to Immigration and that J.S. T-Shirt Pty Limited was an approved standard business sponsor. Crucially, the Tribunal considered the specific circumstances of the nominated occupation, Accountant (General), and the evidence presented regarding the company's operations, turnover, and employee numbers. It concluded that the nominated position was genuine and that the nominee's role involved significant analytical and strategic responsibilities, aligning with the occupation's requirements and not falling into excluded categories such as clerical or bookkeeping roles. The Tribunal also found that the employment conditions offered were not less favourable than those for an Australian worker.

Consequently, the Tribunal determined that J.S. T-Shirt Pty Limited met all applicable criteria for the nomination to be approved. The decision under review, which had not approved the nomination, was set aside, and a substituted decision was made to approve the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. Having reviewed the Departmental file, the Tribunal has determined that:·J.S. T-Shirt is nominating an occupation under s 140GB(1)(b) in relation to an applicant for a Subclass 482 visa: reg 2.73(1);·The nomination was made using the approved form and correct 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 Medium term stream and 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 at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination and the annual turnover for the nomination, and any other specified information: reg 2.73(9);·The nomination includes written certification that the person has not 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: 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; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO; and that the position is in the person’s or an associated entity’s business: reg 2.73(14). 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 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. There is no adverse information on the Departmental file and the Tribunal infers that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.

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.Sheridan AsterMemberATTACHMENT - 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 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. There is no adverse information on the Departmental file and the Tribunal infers that there is no adverse information known to Immigration about the applicant or a person associated with the applicant. 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. J.S. T-Shirt Pty Ltd was approved as a standard business sponsor on 18 November 2021, valid until 18 November 2026. The requirement of reg 2.72(5) is 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 Departmental file contains no record of an outstanding debt and the Tribunal infers there is none. The requirement of reg 2.72(5A) is 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 this case, the nominee does not hold a Subclass 457 or 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. In this case, Migration Instrument LIN 19/048 applies. The occupation must also apply to the nominee in accordance with the instrument. Accountant (General) and its 6-digit code are specified in LIN 19/048. The instrument specifies three circumstances in which the occupation will not apply to the nominee:·The position is a clerical, bookkeeper or accounting clerk position.·The position is in a business that has an annual turnover of less than AUD1,000,000.·The position is in a business that has fewer than five employees. At the hearing, Mr Li gave evidence that J.S. T-Shirt was established in 1996. The company originally manufactured all its textile products in Australia until 2003 or 2004. Now the company imports more than 50 per cent of garments and does the embroidery locally. The company has joint ventures with offshore manufacturers in Bangladesh and China. The company directly employees between 10 to 12 people. Mr Li gave evidence that the primary role of the accountant is to identify cost savings and profit opportunities. Mr Shen does this by analysing supply costs, monitoring exchange rates, and identifying new ventures. For example, the company recently modernised the embroidery machinery and the accountant managed the purchases and loans to fund the purchases. Mr Li also gave evidence that the company was considering acquiring a business in Melbourne to save on freight. Mr Shen analysed the company financial reports and prepared an acquisition proposal.