MAXMA TRANSPORTATION PTY LTD (Migration)

[2018] AATA 5963

MAXMA TRANSPORTATION PTY LTD (Migration) [2018] AATA 5963 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Maxma Transportation Pty Ltd

CASE NUMBER:  1703688

DIBP REFERENCE(S):  BCC2016/2691638

MEMBER:Wan Shum

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2018 at 3:54pm

CATCHWORDS
MIGRATION – employer’s nomination of position – specified occupation – legislative changes to visa program – new instruments made by Minister – inapplicability conditions – minimum annual turnover – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 140GB

Migration Regulations 1994 (Cth), r 2.72(10)(aa)

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 10 February 2017 to refuse to approve a nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. Maxma Transportation Pty Ltd applied for approval on 15 August 2016 for the occupation of Transport Company Manager, and identified Mr Ho Wong as the nominee. 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. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate was not satisfied that the position is genuine and decided not to approve the nomination, finding that Maxma Transportation Pty Ltd (the nominator) did not satisfy r.2.72(10)(f). Mr Wong’s Subclass 457 visa was subsequently refused.

4. The nominator has sought review of that decision and was represented by a registered migration agent.

5. Mr Wong appeared on behalf of the nominator at a hearing on 15 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Lingzi Wang. The representative was present.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

   Specified occupation

8. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the applicable instrument, which is currently IMMI 17/060. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

9. The nominated occupation of Transport Company Manager (ANZSCO 149413) corresponds to an occupation in IMMI 17/060. The instrument does not require that the nomination be supported in writing by a specified organisation.

10. Since the nomination application was made, changes to the Subclass 457 visa program were made effective 19 April 2017. Following that date, a number of new instruments have been made by the Minister. Relevantly to this case, the instrument that applies includes inapplicability conditions introduced to certain specified occupations. The occupation of Transport Company Manager (ANZSCO 149413) is one of these occupations. For the purpose of paragraph 2.72(10)(aa) of the Regulations, the relevant instrument provides that the specification of that occupation excludes any of the following:

    • Item 9 - The position predominantly involves responsibility for low-skilled tasks.

    Example 1: Rostering, maintaining records, reception duties and allocating duties to housekeepers, porters or doorpersons.
    Example 2: Fruit picking or packing or feeding of livestock or animals.
    Example 3: Truck driving.

    • Item 19 - The position is in a business that has an annual turnover of less than AUD1,000,000.
    • Item 21 - The position is in a business that has fewer than 5 employees.

11. The financial statements for financial year ending 30 June 2018 indicate that sales income was around $500,000. The evidence given to the Tribunal is that there are 6 employees, as well as casual staff, although when asked about the number of drivers, Mr Wong said that one of the people who appeared as a full-time driver on the organisation chart was leaving, another started last week and one had been employed for 2 months.

12. In relation to whether the position predominately involves responsibility for low-skilled tasks such as truck driving, Mr Wong said that he creates the schedule for driving and rings potential customers. He also provided evidence of emails between himself and potential customers, negotiating prices and terms. He claimed that he does not meet face-to-face with customers, but rather emails customers and telephones potential customers for new business. He said Ms Wang goes to meet the customers once initial contact has been established. Ms Wang gave evidence that she did everything in the business, including answering calls, contacting customers; finance which entailed bookkeeping duties, payroll and banking; allocation of work; recruitment. This was because Mr Wong had a condition on his bridging visa regarding work restrictions.

13. While the delegate had concerns regarding whether or not the position was genuine, the issue before the Tribunal arises in respect of the applicability conditions set out in the applicable instrument. Mr Wong acknowledged that the occupation could not be approved in the circumstances, but said that the conditions did not exist when the application was made in August 2016, and that it was not fair. He was seeking referral to the Minister. The representative stated that they were aware that it could not be approved but that she believed it was a genuine case and they were requesting a referral to the Minister.

14. On the information before the Tribunal, the annual turnover is approximately $500,000. As the position is in a business that has an annual turnover of less than AUD1,000,000, the occupation is not applicable to the nominator. The Tribunal is thus not satisfied that the occupation corresponds to an occupation that is specified by the Minister for the purposes of r.2.72(10)(aa).

15. For these reasons the requirements of r.2.72(10)(aa) are not met.

16. Mr Wong requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. It is not clear as to whether he was seeking Ministerial referral in respect of both the nomination and the visa application or just the visa application. In any case, the Tribunal will address whether it will refer this case to the Department in this decision.

17. In considering whether to refer the matter to the Minister, the submission is that the position is genuine and that it would have been approved but for the changes to the specification of the occupation. Based on the evidence of Mr Wong and Ms Wang during the hearing regarding the types of duties undertaken by each of them in respect of operating the business, it is not clear whether there is a specific position or whether each undertake various duties as and when required. The Tribunal has thus considered the assertion that the position is genuine but has some concerns as to whether the size of the business warrants a separate position of transport company manager. However, given the issue with the occupation not corresponding to one that is specified, has not reached a concluded view as to whether it is a genuine position or not.

18. The Tribunal has also considered the impact on the business if Mr Wong, as he is not able to make a further application for a visa onshore, were to depart Australia to make any such application. When asked whether he would be able to manage the business offshore if he were to make an application for another type of visa, Mr Wong said that this would be difficult as although he gave evidence that he conducted business by email or phone, he needed to be here if any of the trucks required repairs, as he would drive the truck to be serviced. The task of driving a truck for service is clearly a task that could be carried out by one of the drivers if required. Given Mr Wong’s visa conditions, it appears that the business is currently reliant on Ms Wang undertaking various duties, and she indicated that should would be prepared to do so temporarily if Mr Wong had to go overseas for a short period. The Tribunal is not persuaded that his presence in Australia is required for the business to continue operating if it were a short period of absence.

19. While the Tribunal is cognisant that subsequent changes to the applicable instrument and specific occupations have meant that it is not possible for the nominator to satisfy one of the requirements, numerous businesses seeking to nominate various occupations have been similarly affected by either the removal of the occupation completely from the relevant instrument or by the applicability conditions. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

20. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Wan Shum
    Member