Meath Care Inc (Migration) - [2024] AATA 406

Meath Care Inc (Migration) [2024] AATA 406 (29 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Meath Care Inc
CASE NUMBER:  2102183
HOME AFFAIRS REFERENCE(S):          BCC2020/1449160
MEMBER:Susan Hoffman
DATE:29 February 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 29 February 2024 at 7:07am

CATCHWORDS

MIGRATION – approval of a nomination – Short-term stream – position of Admissions and Liaison Coordinator – annual market salary rate – genuine and full-time position – tasks of the position correspond to nominated occupation – admissions role not part of the position classification – reviewing advertisements for equivalent positions – labour market testing – decision under review set aside

LEGISLATION

Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 2.72, 2.73, 5.42

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

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 5 February 2021 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 applied for approval on 28 April 2020. 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: 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. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl 2.72(15) of the Regulations as they were not satisfied that the applicant determined the annual market salary rate (AMSR) for the nominated occupation in accordance with the specified method.
The applicant lodged a comprehensive submission in December 2023 of over 140 pages. The Tribunal was satisfied it could make a favourable decision on the papers and therefore did not invite the applicant to attend a 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 applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant…

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: Meath Care Inc (Migration) [2024] AATA 406
Case: [2024] AATA 406
Decision Date: 29 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Meath Care Inc for review of a decision by the Department of Home Affairs to refuse approval of a nomination for a visa. The nomination concerned a position of Admissions and Liaison Coordinator, which Meath Care Inc sought to fill under the Short-term stream. The Department's refusal was based on concerns that the nominated position was not genuine, was not full-time, and that the proposed salary did not meet the annual market salary rate for the nominated occupation.

The Tribunal was required to determine whether the position of Admissions and Liaison Coordinator was a genuine and full-time position, and whether the proposed salary met the annual market salary rate. Furthermore, the Tribunal had to consider whether the tasks of the position corresponded to the nominated occupation, and whether the admissions role was an integral part of the position's classification. The Tribunal also had to assess whether Meath Care Inc had undertaken adequate labour market testing by reviewing advertisements for equivalent positions.

In its reasoning, the Tribunal found that the nominated position was genuine and full-time, and that the tasks performed by the employee corresponded to the nominated occupation. However, the Tribunal determined that the admissions role was not part of the position's classification. Crucially, the Tribunal found that Meath Care Inc had failed to conduct adequate labour market testing, as the advertisements reviewed did not accurately reflect equivalent positions. Consequently, the Tribunal set aside the Department's decision and substituted a new decision to approve the nomination.

Orders