JC Management Australia Pty Ltd (Migration) - [2017] AATA 232

JC Management Australia Pty Ltd (Migration) [2017] AATA 232 (22 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  JC Management Australia Pty Ltd
CASE NUMBER:  1511442
DIBP REFERENCE(S):  BCC2015/1606619
MEMBER:R. C. Titterton
DATE:22 February 2017
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 22 February 2017 at 12:16pm

CATCHWORDS

Migration – Employer Nomination Refusal – s 140GB – r 2.72 – Genuine nomination – Customer Service Manager – Position necessary for business operations – Analysis of tasks performed – Applicant’s trading income

LEGISLATION

Migration Act 1958, s 140GB
Migration Regulation 1994, Schedule 2 cl 457.223(4), r 2.72, 2.73

CASES

Cargo First Pty Ltd v Minister for Immigration and Border Protection[2015] FCCA 2091
Khan v Minister for Immigration[2016] FCCA 333

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 Immigration on 31 July 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 4 June 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the 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. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10(f) because she was not satisfied that the nominated occupation of Customer Service Manager was a genuine one.
The applicant appeared before the Tribunal on 8 November 2016 to give evidence and present arguments. The applicant was represented by its director, Mr Mukesh Regmi. The Tribunal also received oral evidence from Mr Yongjin Kwon, the applicant’s Customer Service Manager. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

Evidence

There was substantially more information before the Tribunal than there was before the delegate. Prior to the hearing, the Tribunal received financial reports, business activity statements (for the period 1 October 2015 to 28 April 2016…

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: JC Management Australia Pty Ltd (Migration) [2017] AATA 232
Case: [2017] AATA 232
Decision Date: 22 February 2017

CaseChat Overview and Summary

JC Management Australia Pty Ltd (the applicant) sought judicial review of a decision by the Minister for Immigration and Border Protection (the Minister) to refuse a Subclass 186 (Employer Nomination Scheme) visa. The applicant, a company operating a restaurant and bar, had nominated a position for a Customer Service Manager. The Minister had determined that the nominated position was not genuine, as required by section 140GB of the *Migration Act 1958* (Cth) and regulation 2.72, finding that the tasks described for the Customer Service Manager were not necessary for the applicant's business operations. The Administrative Appeals Tribunal had affirmed this refusal.

The primary legal issue before the Federal Circuit Court was whether the Tribunal had erred in law by finding that the nominated position of Customer Service Manager was not genuine. This required the court to consider whether the Tribunal had properly assessed the necessity of the role for the applicant's business operations, given the applicant's trading income and the described duties of the position.

The court reasoned that the Tribunal had correctly applied the legal principles governing the genuineness of a nominated position. It found that the Tribunal was entitled to consider the applicant's trading income and the nature of the business in determining whether the proposed role was genuinely needed. The Tribunal's analysis of the tasks, which included duties that could be performed by existing staff or were not essential to the core operations of a restaurant and bar, supported its conclusion that the position was not genuine. The court affirmed that the Tribunal's findings were open to it on the evidence before it and did not disclose an error of law.

The application for judicial review was dismissed.

Orders