Liby Holdings Pty Ltd (Migration) - [2022] AATA 1394

Liby Holdings Pty Ltd (Migration) [2022] AATA 1394 (20 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Liby Holdings Pty Ltd
REPRESENTATIVE:  Ms Fang Liu (MARN: 1463212)
CASE NUMBER:  1921403
HOME AFFAIRS REFERENCE(S):          BCC2019/3013240
MEMBER:Deputy President J.L Redfern PSM
DATE:20 May 2022
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 20 May 2022 at 4:56pm
CATCHWORDS:
MIGRATION – temporary skill shortage visa (subclass 482) nomination – approval for nominated position of Poultry Farmer (ANZSCO 121321) – whether nominated position is a genuine position – profitability of business – annual earnings – consideration of Australia’s free trade obligations and labour market testing – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65 and 140GBA
Migration Regulations 1994, regs 1.13A, 1.13B, 2.72 and 2.73, Sch 2 Part 482
SECONDARY MATERIALS
IMMI 13/138
IMMI 18/033
LIN 18/183
LIN 21/075
Revised Explanatory Memorandum, Migration Amendment (Temporary Sponsored Visas) Bill 2013
Policy – Migration Regulations – Divisions (Temporary Skill Shortage visa (subclass 482) – nominations)
Free Trade Agreement Between the Government of Australia and the Government of the People’s Republic of China
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 16 July 2019 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, Liby Holdings Pty Limited (Liby Holdings), applied for approval on 13 June 2019. Liby Holdings operates a poultry farm in regional New South Wales.
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 being 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 of the Act. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream. The occupation nominated is Poultry Farmer (ANZSCO 121321).
The delegate decided not to approve the nomination on the basis that Liby Holdings did not satisfy the criteria that the position associated with the nominated occupation of Poultry Farmer was genuine. The delegate was not satisfied that, due to the level of trade of the business, it was able to financially support the position nominated. Relevantly, it was noted that the financial statements for Liby Holdings for the year ended 30 June 2018 indicated that the business had achieved a modest income yet had incurred considerable expenses.
Prior to the hearing, Liby…

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

Case: [2022] AATA 1394
Decision Date: 20 May 2022

CaseChat Overview and Summary

The case of Liby Holdings Pty Ltd (Migration) concerned a review of a decision not to approve a nomination for a Subclass 482 visa. The applicant, Liby Holdings Pty Ltd, sought to nominate Mr Xiaoxin Han for the occupation of Poultry Farmer. The dispute centred on whether Liby Holdings met the various criteria prescribed by the Migration Regulations 1994 for the approval of such a nomination. The matter was heard by Deputy J.l Redfern Psm P.

The court was required to determine whether Liby Holdings Pty Ltd had satisfied the requirements of Regulation 2.72 of the Migration Regulations 1994. Specifically, the court had to consider whether the nomination was made in accordance with the prescribed process (reg 2.72(3)), whether there was any adverse information known to Immigration about Liby Holdings or associated persons (reg 2.72(4)), whether Liby Holdings was a standard business sponsor (reg 2.72(5)), whether any debts under section 140ZO of the Act had been paid (reg 2.72(5A)), and whether the nominated occupation and its corresponding code were specified in the relevant instrument (reg 2.72(8)). The court also considered whether the nominated position was genuine and full-time (reg 2.72(10)).

The court found that Liby Holdings had complied with the nomination process as set out in Regulation 2.73, including using the approved form, paying the required fee and charge, and providing necessary certifications regarding employment laws and the nominee's qualifications. It was satisfied that no adverse information was known to Immigration concerning Liby Holdings, that the company was a standard business sponsor, and that there were no outstanding debts under section 140ZO. The nominated occupation, Poultry Farmer (ANZSCO code 121321), was found to correspond to the relevant instrument, and the court accepted submissions that the nominated role did not predominantly involve low-skilled tasks. Furthermore, the court was satisfied that the position was genuine and full-time.

Consequently, the court concluded that Liby Holdings Pty Ltd met all applicable criteria for the nomination to be approved. The decision not to approve the nomination was set aside, and a substituted decision was made approving 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, I have 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 Liby Holdings meets the criteria for approval of the nomination. I must approve the nomination if Liby Holdings is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). Liby Holdings must also have paid any nomination training contribution charge in relation to the nomination for which they are liable and must meet any the labour market testing requirements under s 140GBA of the Act. The nomination must comply with the prescribed process Regulation 2.72(3) requires that Liby Holdings has made the nomination in accordance with the process set out in reg 2.73. I have reviewed the nomination application dated 13 June 2019 and I am satisfied that the nomination has been made in accordance with the process set out in reg 2.73. Liby Holdings is nominating a proposed occupation under s 140GB(1)(b) of the Act in relation to an applicant for a subclass 482 visa (reg 2.73(1)). The nomination was made using the approved form and fee and was accompanied by the nomination training contribution charge (regs 2.73 (3), (4), (5) and (5A)). The occupation nominated is one of the short-term skilled occupations specified in the relevant instrument made under reg 2.72(9) of the Regulations, namely the Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Instrument 2019 (reg 2.73(6)(a)).[1] Liby Holdings identified Mr Xiaoxin Han as the nominee (reg 2.73(8)) and the nomination includes the name of the occupation (Poultry Farmer), the corresponding 6-digit code (121321), the location at which the occupation will be carried out (in Kulnura, post code 2250), the proposed period of stay (up to two years) and the annual turnover for the nomination (AUD 262,920) (reg 2.73(9).[2] The nomination application includes written certifications about s 245AR(1) of the Act (reg 2.73(12)). It also includes written certifications that the employment contract with Mr Han complies or will comply with Commonwealth, State or Territory employment laws (reg 2.73(13)) and that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO code 121321 and that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO code 121321 (reg 2.73(14)).[3][1] Refer s 6 at Item 5 being Poultry Farmer ANZSCO code 121321.[2] Refer pp 2-5 Application for Nomination for a Temporary Skill Shortage Visa dated 13 June 2019.[3] Ibid p 12. For these reasons, I am satisfied that 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 Liby Holdings or a person associated with Liby Holdings; 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. The reference to ‘Immigration’ should now be taken to refer to the Department of Home Affairs, which includes the immigration portfolio. It is submitted that there is no evidence of adverse information known to Immigration before the Tribunal. I accept this submission and I am therefore satisfied that the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor

Decision

Reasons for decision

For the reasons given above, Liby Holdings 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.J.L Redfern PSMDeputy PresidentATTACHMENT - 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, I am satisfied that 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 Liby Holdings or a person associated with Liby Holdings; 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. The reference to ‘Immigration’ should now be taken to refer to the Department of Home Affairs, which includes the immigration portfolio. It is submitted that there is no evidence of adverse information known to Immigration before the Tribunal. I accept this submission and I am therefore satisfied that 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. By letter dated 11 December 2021 from the Department, Liby Holdings was notified that its sponsorship application as a standard business sponsor was approved effective until 11 December 2026. As such, I am satisfied that 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 Liby Holdings has any outstanding debt under s 140ZO of Act. I am therefore satisfied that 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. As the nominee is not the holder of a Subclass 457 or Subclass 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, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument. In this case the occupation nominated is Poultry Farmer, and the ANZSCO code is 121321. This corresponds to the occupation and 6-digit code specified in the relevant instrument. There is a caveat or condition recorded to the effect that the position “predominantly involves responsibility for low skilled tasks”. It is submitted, and I accept, for the reasons set out in more detail below, that the role nominated does not involve such responsibilities. I am therefore satisfied that the requirements of reg 2.72(8) are met.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 [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.