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 asideLEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73CASES
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 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).
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.
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.
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.
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…
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- Case
- [2024] AATA 3894
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
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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.