MEDIOZ ENTERPRISES PTY LTD (Migration) - [2018] AATA 4298

MEDIOZ ENTERPRISES PTY LTD (Migration) [2018] AATA 4298 (26 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MEDIOZ ENTERPRISES PTY LTD
CASE NUMBER:  1704759
DIBP REFERENCE(S):  BCC2016/478139
MEMBER:Susan Trotter
DATE:26 September 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 26 September 2018 at 4:26pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – wholesaler – renewal of visa – occupation not on specified list – legislative changes – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975, (Cth), ss 42, 43
Migration Act 1958 (Cth), ss 140GB, 349
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
B&G Green Trading Pty Ltd (Migration) [2018] AATA 3190
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the then Minister for Immigration and Border Protection[1] (the Minister) on 22 February 2017 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
[1] Now the Minister for Immigration, Citizenship and Multicultural Affairs
Under the Act and Regulations, prior to 18 March 2018,[2] there were three stages in sponsoring an employee from overseas in the Subclass 457 visa program.
(a) Sponsorship – an employer applies for approval as a standard business sponsor;
(b) Nomination - the employer nominates an occupation for a prospective or existing Subclass 457 visa holder; and
(c) Visa application - the person nominated to work in the nominated occupation applies for the Subclass 457 visa.
[2] From which date, new applications for Subclass 457 visas ceased
In the standard business sponsor context, the nomination is the second phase of this three-stage business sponsorship scheme under the Act and the Regulations. Specifically, nomination is the process through which a standard business sponsor, or a non-Ministerial party to a work agreement, nominates for approval an occupation which a visa holder, visa applicant, or proposed visa applicant will undertake. This ensures that the standard business sponsor, or party to the work agreement, agrees to be the sponsor for that particular visa holder, visa applicant, or proposed visa applicant.
The applicant, Medioz Enterprises Pty Ltd (Medioz) applied for approval on 1 February 2016 nominating the occupation of Wholesaler (ANZSCO Code 133312) to be undertaken by Md Diadarul Alam.
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. These criteria are extracted in the attachment to this decision.
The delegate decided not to approve the nomination on the basis that Medioz did not satisfy r.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation was genuine as required. In particular, based upon the current business operating environment of Medioz, the delegate was…

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: [2018] AATA 4298
Decision Date: 26 September 2018

CaseChat Overview and Summary

This matter concerned an application by Medioz Enterprises Pty Ltd for approval of a nomination for a Subclass 457 visa. The nominated occupation was "Wholesaler" (ANZSCO code 133312). The Administrative Appeals Tribunal was required to determine whether Medioz met the requirements of regulation 2.72(10)(aa) of the Migration Regulations 1994.

The primary legal issue was whether the nominated occupation of "Wholesaler" was specified in the relevant legislative instrument in force at the time the nomination was made and subsequently considered. This involved an examination of the applicable instruments, IMMI 15/092, IMMI 17/060, and IMMI 18/004, and how they applied to nominations made before and after specific legislative changes.

The Tribunal found that while the nominated occupation was listed in the Consolidated Skilled Occupation List (CSOL) under IMMI 15/092 when the nomination application was made on 1 February 2016, subsequent legislative changes meant that the occupation was no longer listed in the relevant instruments (IMMI 17/060 and IMMI 18/004) that applied to the nomination. Regulation 2.72(10)(aa) requires that the nominated occupation and its corresponding code correspond to an occupation and code specified by the Minister in an instrument in writing. Despite arguments that the application was a renewal and that the nominee had been working for Medioz since 2014, and that the law had changed after the application was lodged, the Tribunal noted that it was unable to change the law.

The Tribunal affirmed the decision not to approve the nomination, concluding that the nominated occupation of Wholesaler was not specified in the applicable legislative instrument in force at the time of the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As also noted in the 27 August 2018 letter, the Tribunal considers the information the subject of the certificate to have no relevance to the issues before the Tribunal. Accordingly, the Tribunal had no regard to this information.DECISION The Tribunal affirms the decision not to approve the nomination.Susan TrotterMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 Criteria for approval of nomination — Subclass 457…(1)This regulation applies to a person who is:(a)a standard business sponsor; or(b)a party to a work agreement (other than a Minister);who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.(4)The Minister is satisfied that the person is:(a)a standard business sponsor; or(b)a party to a work agreement (other than a Minister).(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.(7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.(7A)In addition to subregulation (6):(a)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and(b)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the person has listed on the nomination a person described in paragraph (6) (a); and(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;(b)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and (ii) the person is a standard business sponsor;the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);(c)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and(ii) the person is a party to a work agreement;the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;(9)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.(10)If the person is a standard business sponsor — the Minister is satisfied that:(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ASCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (a); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ASCO; or(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ANZSCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ANZSCO; or(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).(f)the position associated with the nominated occupation is genuine; and(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;(ii) if:(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; (iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;(iv) unless subparagraph (ii) applies—the holder:(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and(h)either:(i) the person will:(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and(B)give a copy of that contract to the Minister; or(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:(a)the terms and conditions of employment; and(b)the base rate of pay, under the terms and conditions of employment;that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and(c)the Minister considers it reasonable to do so.(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

Ratio Decidendi

Legal Principle Established

It follows that the issue to be determined by the Tribunal is whether Medioz meets r.2.72(10)(aa).CONSIDERATION It is not disputed that, when Medioz made its present nomination application on 1 February 2016, the nominated occupation of Wholesaler (ANZSCO code 133312) was specified for the purposes of rr.2.72(10)(a) or (aa) in the applicable written instrument in force at the time, being IMMI 15/092. The nominated occupation was listed in the Consolidated Skilled Occupation List (CSOL) in that instrument. Significant legislative changes came into effect following the date of application for approval of the nomination with the current relevant instrument issued for the purposes of r.2.72(a) and (aa) being IMMI 17/060. On 1 July 2017, a new instrument specifying approved occupations for the purposes of r.2.72(10)(aa) for the Subclass 457 visa program came into effect, being IMMI 17/060. This instrument contains new versions of the Medium and Long-term Strategic Skills Lis (MLTSSL) and the short-term Skilled Occupation List (STSOL) but neither of them includes the nominated occupation of Wholesaler. This instrument is expressed to apply to all nominations made on or after 1 July 2017, and to those made but not finally determined before 1 July 2017, regardless of whether, for a nomination in relation to an applicant for a visa, the application was made before, on or after 1 July 2017. Medioz’s nominated occupation of Wholesaler (ANZSCO code 133312) is not on either list and thus Medioz’s nomination cannot meet r.2.72(10)(aa), one of the requirements for the nomination to be approved, which requires that the nominated occupation corresponds to one on the list specified in the relevant written instrument. On 17 January 2018, a new instrument specifying approved occupations for the purposes of r.2.72(10)(aa) for a Subclass 457 visa came into effect, being IMMI 18/004. This instrument contains new versions of the MLTSSL and the STSOL but neither of them includes the occupation of Wholesaler (ANZSCO code 133312). This instrument is expressed to repeal IMMI 17/060, but states that IMMI 17/060 continues to apply in relation to a nomination of an application that was made before 17 January 2018. Accordingly, the Tribunal is satisfied that IMMI 18/004 applies to nominations made on or after 17 January 2018, and that IMMI 17/060 continues to apply to the nomination under review in this case. The effect of this is that the occupation nominated by Medioz is no longer specified for the purposes of r.2.72(10)(aa) by an instrument that is in effect. This was discussed at some length with Mr Khan at hearing. Mr Khan raised his concern that this application is not a new application. He stated that the nominee was already working for Medioz. It was just a renewal application. It was abundantly clear it was a genuine position. It was the same company, same structure and same activity that had previously been accepted. The first nomination was approved in February 2014. He told the Tribunal that the nominee has been working for the company since then. It noted that it took over a year for the Department to refuse the new nomination application and it was the wrong decision and it has then taken over two years for the Tribunal to consider the matter. At the time the application for approval of the nomination was lodged, the nominated occupation of Wholesaler was a valid occupation and the law has since changed. He stated that even at the time Medioz lodged an application with the Tribunal, the occupation was a valid occupation and Medioz’s application should therefore be successful. Secondly, this is a renewal of an application. Approval had already been given in February 2014 and it should just be a renewal. Mr Khan told the Tribunal that Medioz wants to keep Mr Alam because he knows a lot of things about their clients and buyers. What they are seeking from the Tribunal is to be able to go back to the Department to apply for a different visa for Mr Alam. He stated that if the Tribunal decides ‘no’, the Department did not make a mistake, they have a lot of problems because they cannot validly apply for another visa. The Tribunal discussed with Mr Khan at hearing that even if the Tribunal were to decided that the Department had incorrectly decided that r.2.72(10)(f) is not met, if it decided that that was a mistake, the Tribunal, before it can approve the nomination, is required to consider all of the other requirements for a nomination to be approved. The Tribunal noted that it may well accept that it seems unfair that the law has changed. However, the Tribunal noted that it is unable to change the law.