KD Trading Australia Pty Ltd (Migration)

KD Trading Australia Pty Ltd (Migration) [2022] AATA 813 (4 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  KD Trading Australia Pty Ltd
REPRESENTATIVE:  Ms Catherine Farrell (MARN: 1460539)
CASE NUMBER:  1906725
HOME AFFAIRS REFERENCE(S):          BCC2019/396168
MEMBER:Katie Malyon
DATE:4 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 04 April 2022 at 4:34 pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – accountant – genuine position – no current business information provided – business affected by COVID-19 and position no longer available to nominee – nominee offshore with another visa application in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 353, 359(2), 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), rr 2.72(10)(a), (b), 2.73
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28

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 Home Affairs on 1 March 2019 to refuse to approve the nomination made by the applicant, KD Trading Australia Pty Ltd (the Company), under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval on 8 February 2019. A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and r.2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of 3 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. These criteria are extracted in the Attachment to this decision. Additional criteria are specified in s.140GBA of the Act. 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 of the position of Accountant (General) ANZSCO 221111 for the nominee, Hong Kong national Ms Tsz Ching Wong, on the basis that the Company did not satisfy r.2.72(10)(a) of the Regulations because, based on evidence provided, the delegate was not satisfied that the nominated position is genuine.
Inconsistent with cl.5 of the Migration and Refugee Matters Practice Direction of 1 August 2018, no documentation was lodged with the Tribunal in support of the review application, apart from a copy of the delegate’s decision.
To enable the Tribunal to assess whether the Company meets all of the relevant requirements for approval of its nomination, the Tribunal wrote to the Company pursuant to s.359(2) of the Act on 17 February 2022 and invited it to provide updated and current information about its business and the nominated position. The Tribunal’s letter was sent to the person appointed to receive communications on behalf of the Company, its representative Ms Catherine Farrell.
The Tribunal’s s.359(2) letter advised the Company that, if information in writing was not received by the Tribunal by 3 March 2022 or if it did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and, further, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 28 February 2022, the Tribunal received a request from the representative for an extension of time to provide the requested information. The Tribunal acknowledged the representative’s request and confirmed that an extension had been granted until 17 March 2022.
Subsequently, on 17 March 2022 the Tribunal received an email from representative in which she confirms instructions that the Company’s business operations have been badly affected by COVID-19 such that the ‘nominated role is unfortunately no longer available to Ms Wong, the nominee’. The representative adds that she does not have instructions to provide information in accordance with the Tribunal’s s.359(2) letter and that she understands ‘a hearing will not follow in this review as a result’.
The representative also notes that the nominee Ms Wong has travelled overseas very recently and, further, she has lodged an offshore Student visa application with the intention of furthering her studies in Australia. A copy of the Department’s acknowledgement of receipt of Ms Wong’s Student Subclass 500 visa dated 14 March 2022 was provided to the Tribunal together with a copy of Ms Tsz Ching Wong’s Confirmation of Enrolment issued by Torrens University for a 2 year Master of Business Information Systems degree commencing 7 February 2022. The representative also requests that, as Ms Wong does not have a Bridging visa, the Tribunal hold this review application (and Ms Wong’s associated visa review application Tribunal Matter No. 1909627) in abeyance for approximately 3 months so that Ms Wong can continue her studies as she has already commenced her studies offshore. Finally, the representative notes she will obtain instructions to withdraw both review applications as soon as Ms Wong’s Student visa is granted. The representative concludes by observing that the effluxion of time since lodgement of the review application in combination with the COVID-19 pandemic has resulted in the unavailability of the nominated role through no fault of the nominee.
The Company has not provided updated and current information about its business and the nominated position in response to the Tribunal’s s.359(2) letter. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s.363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40. The representative has acknowledged that failure to provide requested information by the due date will result in the Company’s loss of its right to a hearing.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the Company additional time to either: provide evidence to support the review application; or, in the alternative and as anticipated by the representative in her email of 17 March 2022, allow the Company to withdraw its review application in approximately 3 months’ time following grant of the nominee Ms Wong’s Subclass 500 visa.
In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to advice from the representative that the nominated role with the Company is no longer available to the nominee Ms Wong due to the business operations of the Company having been adversely affected by the pandemic and whether, on the other hand, the Company meets all relevant requirements in r.2.72 of the Regulations and s.140GBA of the Act is likely to be forthcoming, whether it has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the Company. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is the delegate’s decision of 1 March 2019 with respect to refusal of the Company’s nomination: it is the Company’s merits review application that the Tribunal is now considering, not the nominee Ms Wong’s merits review application of the delegate’s refusal of her Subclass 482 visa application. In passing, the Tribunal notes that Ms Wong’s review application is yet to be constituted to a Member. The Tribunal has also taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.
As noted above, it was more than 3 years ago on 1 March 2019 that the delegate refused the nomination made by the Company because it failed to demonstrate that the position associated with the nominated occupation was genuine. The delegate specifically questioned the legitimacy of the position and considered the weight of evidence provided which indicated that the primary purpose of nominating the position may be to facilitate Ms Wong’s further stay in Australia, rather than to fill a genuine vacancy or skill shortage. Despite delegate’s clearly expressed reasons for refusing the Company’s nomination, no documentation was lodged in support of the Company’s review application apart from a copy of the delegate’s decision itself. As noted above, this is inconsistent with the Tribunal’s Migration and Refugee Matters - Practice Direction.
Importantly, the Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay its conduct, contrary to the legislative objects set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975.
The Tribunal’s s.359(2) letter invited the Company to provide updated and current information to demonstrate that its nomination meets all of the relevant requirements in r.2.72 of the Regulations and s.140GBA of the Act. The Company has failed to provide any documentation in response to the Tribunal’s invitation within the agreed extended period set for this purpose. It is evident to the Tribunal that the Company has not proactively engaged in the review process from the outset.
In the circumstances of this case, the Tribunal considers that the Company has had sufficient time in which to address all the issues arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review of refusal of the Company’s nomination any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s.359C of the Act.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 all of the relevant requirements in r.2.72 of the Regulations: s.140GB(2) of the Act. 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 of the Act.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at para [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, r.2.72(10)(b) of the Regulations requires the position to be a full-time position.
As noted above, the delegate refused the Company’s nomination of the position of Accountant (General) ANZSCO 221111 for the nominee Ms Tsz Ching Wong because the weight of evidence provided indicated that the primary purpose of nominating the position was to continue Ms Wong’s stay in Australia rather than to fill a genuine vacancy or skill shortage. In its s.359(2) letter, the Tribunal requested the Company provide current and updated evidence that it is operating a business which requires the services of the nominee to work as an Accountant (General) 221111. No such evidence has been provided. On the contrary, the representative has advised that the ‘nominated role is unfortunately no longer available to Ms Wong, the nominee’.
In the circumstances, the Tribunal cannot be satisfied that the position associated with the occupation of Accountant (General) ANZSCO 221111 with the Company is genuine and full-time. Accordingly, the requirements of r.2.72(10) of the Regulations are not met.
Having regard to this finding, it has not been necessary for the Tribunal to consider remaining criteria. In these circumstances, the decision under this review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Katie Malyon

Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 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)…
oOOo

[2022] AATA 813

4 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal