MAGIC MASSAGE TOWNSVILLE PTY LTD (Migration)

[2018] AATA 5634

MAGIC MASSAGE TOWNSVILLE PTY LTD (Migration) [2018] AATA 5634 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Magic Massage Townsville Pty Ltd

CASE NUMBER:  1707704

DIBP REFERENCE(S):  BCC2016/4284874

MEMBER:Katie Malyon

DATE:20 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination

Statement made on 20 December 2018 at 1:47 pm

CATCHWORDS

MIGRATION – nomination of an occupation (employer nomination) – genuine position – occupation of Massage Therapist – facilitating a migration outcome – a suitably skilled Australian was not available – decision under review affirmed          

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2
Migration Act 1958, ss 140GB, 353, 359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73

CASES

Hasran v MIAC [2010] FCAFC 40

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 Immigration on 29 March 2017 to refuse to approve a nomination made by the applicant, Magic Massage Townsville 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)

2. The Company applied for approval on 19 December 2016. 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. 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 of the Act

3. The delegate decided not to approve the nomination on the basis that the Company did not satisfy r.2.72(10)(f) of the Regulations, which requires that the position associated with the nominated occupation of Massage Therapist ANZSCO 411611 be genuine. The delegate was not satisfied that the nominated position existed because of a genuine skill shortage but rather, the position was created to facilitate a migration outcome for the visa applicant and her husband. The delegate was ultimately not satisfied that the position existed because a suitably skilled Australian was not available to fill the nominated position.

4. A copy of the Delegate’s decision was provided to the Tribunal.

   Background

5. On 5 November 2018, the Tribunal invited the Company, under s.359(2) of the Act, to provide updated and current information addressing the relevant criteria in r.2.72 of the Regulations and s.140GB of the Act.

6. In its letter, the Tribunal advised the Company that, if the information was not provided in writing by 19 November 2018 or if the Company has not made 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. Furthermore, the Tribunal noted that 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.

7. The Company has not provided any information or documentation within the prescribed period and no extension had been sought, or granted. 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. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. 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 in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case, evidence that the Company meets the relevant requirements of r.2.72 of the Regulations is likely to be forthcoming, whether the Company has already had a fair opportunity to provide the relevant information or documentation, and the significance of the information or documents to the Company.

9. In the circumstances of this case, the Tribunal considers the Company has had sufficient time in which to address the issues arising on review, that is, whether it meets the relevant criteria for approval of the nomination. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review 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. In passing, the Tribunal notes that the Company is not prevented from lodging a new, fully documented decision-ready nomination application with the Department, if it so desires.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the Company meets the criteria for approval of the nomination. The Tribunal must approve the Company’s nomination if all the applicable requirements in r.2.72 of the Regulations and, for nomination applications made from 23 November 2013, s.140GBA of the Act have been met: s.140GB(2) of the Act.

12. As noted above, the delegate was not satisfied that the evidence provided to the Department demonstrated that the nomination was lodged to fill a genuine skill shortage. Consequently, the delegate found that the Company failed to satisfy r.2.72(10)(f) of the Regulations.

13. The Tribunal wrote to the Company under s.359(2) of the Act on 5 November 2018 inviting it to provide information in writing to demonstrate that the Company meets the requirements of the relevant criteria in r.2.72 of the Regulations and s.140GB of the Act. The Company has failed to provide the requested documentation or seek an extension of time to provide the documentation.

14. In the circumstances, the Tribunal is not satisfied that the Company has demonstrated that the position associated with the nominated occupation is genuine. Accordingly, the requirements of r.2.72(10)(f) of the Regulations are not met.

15. For the above reasons the Tribunal is not satisfied that the Company meets the applicable criteria for the nomination to be approved.   

16. Therefore, the decision under review must be affirmed.

    DECISION

17. The Tribunal affirms the decision not to approve the nomination

    Katie Malyon

    
    Member