MEDIOZ ENTERPRISES PTY LTD (Migration)
[2018] AATA 4298
•26 September 2018
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 3190STATEMENT 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 not satisfied that the nominee was likely to be actually performing the full breadth of duties of the nominated position of Wholesaler.
Medioz lodged an application for review of the delegate’s decision with the Tribunal on 14 March 2017. It was lodged on behalf of Medioz by Mr Pervez Khan, a director of Medioz, and was accompanied by a copy of the delegate’s decision and various supporting documents.
On 5 September 2017, the Tribunal wrote to Medioz advising that on 18 April 2017, the Minister announced significant changes to the skilled occupations that could be nominated and approved for the purposes of a Subclass 457 visa application, and that the nominated occupation (Wholesaler – 133312) had been removed from the list of eligible skilled occupations. The Tribunal noted that, as a result, it appeared that Medioz might no longer meet the requirement in r.2.72(10)(aa). The Tribunal invited Medioz to provide submissions on this issue by 19 September 2017, and provided a link to the Department’s website where the changes were discussed in detail.
On 19 September 2017, the Tribunal received a response to its 5 September 2017 letter from Mr Khan as follows (unedited):
On 5 September 2017 I Pervez Khan owner/director of Medioz Enterprises Pty Ltd received a letter from the AAT in relation to an application for review for a refusal of nomination. We were asked to provide a submission by 19 September 2017.
We submit our claims as follows so that the nomination application be approved.
1)Medioz Enterprises Pty Ltd is is an approved Standard Business Sponsor. Medioz Enterprises Pty Ltd’s Standard Business Sponsorship was approved on 21 March 2016.
2)The owner and director of this business is Mr. Pervez Khan. The nominated position was that of a Wholesaler that is the nominated occupation (Wholesaler - 133312).
3)The intention of Medioz Enterprises Pty Ltd was to expand their wholesale business in Australia and have a Wholesaler to procure buyers and distribute the imported products for sale in Australia to retail buyers.
4)The business and nominated Md Didarul Alam for the position of a Wholesaler within the business. The nominee previously held a 457 visa and made a further 457 visa application based on the nomination application.
5)During the processing of the application the department requested information on the business and we had provided numerous supporting documents including the financial documents that supported the business requirements of a position of a wholesaler.
6)The nomination application was refused on 22 February 2017. The department refused the application based on the assumption that the nominated position of a wholesaler was not a genuine position.
7)The nominated applicant is our employee, and had contributed to the business and building strong relationships retailers and clients.
8)We are trying very hard to grow our business and that having the nominee with the wholesaler skills and knowledge increased the work and sales of the business.
9)The business would suffer without the nominee applicant, and we would have to struggle again of filling the nominee’s position. It is very hard to find the skills that the nominee fills as he is bi-lingual (English and Bangla language) and caters to shops that sell items for the ethnic community.
10)The nominee still works for our business and if his nomination is not approved then the business would suffer a financial loss without the nominee’s contribution. This is a big risk that the business has to undertake should the decision of the department in relation to the refusal of the nomination application is withheld.
11)During the last financial year the business has done considerably well as we have the nominee still working and contributing to the business.
12)We request the AAT to give the above claims importance and review the department file in full to make an informed decision.
13)We further note the contents of the AAT letter dated 5 September 2017 wherein it is stated that “..on 18 April 2017 the Minister announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a subclass 457 visa application. The Tribunal notes that the nominated occupation (Wholesaler – 133312) has been removed from the list of eligible skilled occupations. As a result, your application of a business nomination may no longer meet the requirement in r.2.72(10)(aa) of the Migration Regulations 1994”.
14)It is submitted that the nomination application for the nominated occupation of a Wholesaler – 133312 (which was on the eligible skilled occupation list) was lodged with then Department of Immigration and Border Protection (the Department) on 1 February 2016 and the required fee was paid therefore the application being a valid application at the time of lodgement. We note that the department delayed the processing of this application whereby it took them nearly more than 12 months to decide on the application which was a timeframe beyond the service deliverable time quoted by them.
15)We submit that the nominated occupation was on the list of eligible skilled occupations at the time of application and therefore more than 12 months and any changes to the eligible skilled list on 18 April 2017 should not impact the application made on the 1 February 2016 because at the time of the application the nominated occupation of a Wholesaler was an occupation on the eligible skilled list. We also note that the application to the AAT for review of the decision of the department was made to the AAT prior to 18 April 2017, that is, when the nominated occupation was still on the eligible skilled list and therefore the AAT should consider and assess the application for review on the basis that the nominated occupation was on the eligible skilled list at the time when the AAT received the application.
We submit that any change to the eligible skilled list was an act that was beyond our control and should not apply to this particular case where an application was validly made and at the time of lodgement the occupation of a wholesaler was an occupation on the eligible skilled list and the situation was same even when the application for review to the AAT was made.
16)I am willing to attend an interview with the AAT so that I can explain the circumstances surrounding case and how it will adversely affect our business should the nominee’s nomination application for the position of a wholesaler is not approved as a result of an act that was beyond our control.
On 14 August 2018, the Tribunal wrote to Mr Khan (on behalf of Medioz) inviting him to attend a hearing on 30 August 2018.
On 24 August 2018, Mr Khan wrote to the Tribunal seeking an adjournment of the hearing on the basis that he was engaged on an interstate business trip from 28 August 2018 to 11 September 2018.
On 27 August 2018, the Tribunal wrote to Mr Khan advising that the request for an adjournment had not been granted and advising that Mr Khan could attend the hearing by telephone. Under cover of this letter, the Tribunal also advised Mr Khan of the existence of a certificate issued by a delegate of the Minister pursuant to s.376 of the Act, advising that the Tribunal considered the certificate valid but considered the information to which the certificate applies of no relevance to the issues before the Tribunal and noted that the Tribunal would discuss the certificate with Mr Khan at hearing. The Tribunal also provided Mr Khan with a copy of the certificate and invited Mr Khan, if he wished, to make submissions in relation to the validity of the certificate.
On 28 August 2018, Mr Khan responded to the Tribunal confirming that he would be attending the hearing by telephone.
On behalf of Medioz, Mr Khan appeared before the Tribunal on 30 August 2018, by telephone, to give evidence and present arguments. The Tribunal allowed Medioz further time following the hearing, until 13 September 2018, to provide further submissions.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
ISSUES
Although the nomination application was originally refused on the basis that r.2.72(10)(f) was not met, as the delegate found that the position associated with the nominated occupation was not genuine, subsequent legislative amendments have meant that another criterion of r.2.72(10) has become relevant and is in fact determinative to the outcome of this review: with the other criterion being r.2.72(10)(aa).
Regulation 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 instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. 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).
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.
Mr Khan responded that at the time the application was made to the Tribunal, the nomination was valid. When queried as to what decision is sought from the Tribunal, Mr Khan stated that they want to go back to the Department, because the Department made a mistake, and then they can make another application to the Department for a different visa/occupation. The Tribunal noted, as already discussed, that it could only give a favourable result if all of the requirements to approve the nomination are met now.
Mr Khan told the Tribunal that he had to discuss with his barrister if there was any law that would allow them to go back to the Department. The Tribunal noted that Medioz had been on notice since the Tribunal’s letter of 5 September 2017 of the issue in question. Nonetheless, given Mr Khan’s request to be allowed further time to go back to his barrister, the Tribunal agreed to allow Medioz another week, in addition to the time it had had since 5 September 2017, to provide further submissions to the Tribunal. Mr Khan requested that a further two weeks be allowed. The Tribunal agreed to Mr Khan’s request and allowed further time until 13 September 2018 to provide further submissions. The Tribunal noted that if no further new issues arose, it would then proceed to make its decision.
On 13 September 2018, the Tribunal received the following further submissions from Medioz (unedited):
OVERVIEW
1.Medioz Enterprises Pty Ltd lodged a valid application for a subclass 457 nomination (EGOAOXT4AG; BCC2016/478139) and visa (EGOAOZF9ZN; BCC2016/478490) on 1 February 2016.
2.The Department refused the nomination application on 22 February 2017, on the basis that the position was not genuine.
3.Medioz Enterprises Pty Ltd lodged a valid review application with the Tribunal on 14 March 2017 for the nomination.
4.The Department refused the visa application on 1 April 2017 on the basis that he did not hold a valid nomination.
5.The visa applicant lodged a valid review application with the Tribunal on 12 April 2017 for the nomination.
6.At hearing on 30 August 2018, the Tribunal advised that it accepted that the nomination was incorrectly decided.
7.The Tribunal invited the applicant to provide submissions on the issue of whether it has discretion to make its review decision regarding subclass 457 nomination and visa refusals as at the date of the Department’s refusal or if it can only make decisions as at the Tribunal’s decision date.
SUMMARY
8.The nomination application was made before 18 March 2018 and an associated subclass 457 visa application was also made prior to 18 March 2018.
9.Section 140GB of the Migration Act1958 (the Migration Act) and regulation 2.72 of the Migration Regulations1994 (the Regulations) at the date of the Department’s decision apply to this review application.
10.The transitional provisions do not impact these nomination and visa applications.
11.The application was lodged in 2016, refused incorrectly in February 2017, the occupation of Wholesaler (ANZSCO 133312) was removed from CSOL and its replacement on 19 April 2017, and the nomination and visa were decided before the 18 March 2018 amendments.
12.Under section 140GB of the Migration Act and regulation 2.72 at the date of the Department’s refusal, the application met the prescribed criteria for approval of the nomination.
13.Tribunal has the power to make decisions on policy at the time the decision under review was made; at the time of the Department’s refusal according to the Migration Act and Regulations at that date.
14.Under section 43 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal may set aside a decision under review and make its own decision in substitution or remit the decision to the Department (compare section 42D for remittance).
15.We submit that where a nomination has been incorrectly refused under section 140GB of the Migration Act and regulation 2.72, and a visa application was refused before changes to CSOL took effect because there is no valid nomination, the Tribunal may exercise its power to substitute an approval.
16.Decisions made by the Minister regarding subclass 457 nominations are made according to the law at the time of decision.
17.We submit that if the Tribunal exercises its discretion to remit the application to the Department, it would be decided on the basis of the current Migration Act and Regulation and therefore refused. This would be a substantively unjust outcome.
18.We request that the Tribunal exercise its power to substitute positive decisions for the nomination and visa applications pursuant to its power under Section 43 of the AAT Act.
APPLICABLE LEGISLATION AND REGULATION
19.Section 43(6) of the AAT Act:
“A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.”
20.Section 43(1) of the AAT Act:
“(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
…
(6)A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.”
21.Further, section 42D of the AACT Act Power to remit matters to decision maker for further consideration:
“(1)At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2)If a decision is so remitted to a person, the person may reconsider the decision and may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
(3)If the person varies the decision:
(a) the application is taken to be an application for review of the decision as varied; and
(b) the person who made the application may either:
(i)proceed with the application for review of the decision as varied; or
(ii)withdraw the application.
(4)If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may either:
(i)proceed with the application for review of the new decision; or
(ii)withdraw the application…”
22.Under section 140GB of the Migration Act the Minister must approve a nomination if the prescribed criteria are satisfied.
23.Regulation 2.72 provides the prescribed criteria for approval of a subclass 457 nomination.[3] Regulation 2.72(8A) requires the Minister to be satisfied that the 6-digit ANZSCO code for the nominated occupation to be provided as part of the application.
[3] As at 1 July 2016.
“(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.”
24.Regulation 2.72(10)(aa) requires the Minister to be satisfied that the occupation and corresponding ANZSCO code be specified in an instrument in writing.
“(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
…
(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…”
At the time of application, the applicant’s occupation was specified in the CSOL. It was removed after the application was refused.
25.Under the regulation at the date of decision, the requirements were satisfied. Therefore the Tribunal may exercise its power to substitute an approval.
CASES
26.B&G Green Trading Pty Ltd (Migration),[4] is relevant when considering subclass 457 nomination applications submitted before 18 March 2018. In that case, a nomination had been submitted but not finalised before the amendments came into effect and the visa application was not lodged before subclass 457 visas were repealed.
27.On the present facts, the applicant submitted a nomination which was wrongly decided before the amendments came into effect and the visa was subsequently refused also before the amendments came into effect.
28.In B&G Green Trading Pty Ltd (Migration) it was found that neither the old nor the amended version of regulation 2.72 applied to the applicant’s nomination; that no prescribed criteria apply to the assessment of the nomination for the purposes of section 140GB(2)(b) of the Migration Act. For the reasons outlined in the above paragraph, this decision is not applicable in the present circumstances.
[4] [2018] AATA 3190 (31 August 2018)
The Tribunal has carefully considered Medioz’s submissions, including the further written submissions of 13 September 2018. Firstly, the Tribunal notes that it did not, at hearing, advise that it accepted that the nomination was incorrectly decided. Rather, the Tribunal discussed with Mr Khan that even if it decided, contrary to the Department, that r.2.72(10)(f) was satisfied, it was also required to be satisfied that all other requirements for the nomination to be approved were satisfied, including r.2.72.(10)(aa). Further, the Tribunal did not invite specific submissions in relation to whether it has discretion to make its review decision as at the date of the Department’s refusal or if it can only make decisions as at the Tribunal’s decision date. As discussed at hearing, the Tribunal is bound to apply the law. It has no discretion. The further time allowed by the Tribunal to Medioz was time in which it could make further submissions generally.
Pursuant to s.140GB(2) and s.349(2) of the Act, on review, the Tribunal has the power either to affirm a decision to refuse an application for nomination, if one or more of the prescribed criteria are not met or if labour market testing requirements are applicable and not met (and no exemption applies), or to set aside a refusal decision and substitute a new decision to approve the nomination, if satisfied that all prescribed criteria and the labour market testing requirements (subject to application or an exemption applying) are met. As regards the submissions in relation to ss.42D and 43 of the Administrative Appeals Act 1975 (the AAT Act), notably s.24Z of the Act provides that except for ss.25 and 42 (which have are not relevant to the powers of the Tribunal upon review in relation to this matter), Part IV of the AAT Act (within which ss.42D and 43 fall) does not apply in relation to a proceeding in the Migration Review Division of the Tribunal.
As regards r.2.72(10)(aa), IMMI 17/060 relevantly provides at s.9 as follows:
9 Application of this instrument
This instrument applies in relation to nominations of occupations:
(a)made on or after 1 July 2017; or
(b)made and 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.
IMMI 17/060 is very clear in its terms. It applies both to nominations of occupations made on or after 1 July 2017 and to nominations of occupations made and not finally determined before 1 July 2017. There is no discretion that can be applied.
The nominated occupation of Wholesaler is not included in the MLTSSL or STSOL specifying occupations for the purposes of r.2.72(10)(aa). It follows that the Tribunal must find that the requirements of r.2.72(10)(aa) are not met.
As Medioz fails to meet one criterion of r.2.72, it means that the nomination application cannot be approved. It is therefore unnecessary for the Tribunal to further consider whether Medioz meets the original criterion in dispute, r.2.72(10)(f): whether the position is genuine or not, or the other necessary criteria for the nomination to be approved.
The Tribunal acknowledges the concerns expressed by Mr Khan in relation to the adverse effect on his business and on his nominee Mr Alam caused by legislative changes that took place after Medioz had made its nomination, and after Medioz had applied to the Tribunal. However, the Tribunal is bound to make its decision according to the applicable law. It has no discretion to overlook the requirement for Medioz to satisfy r.2.72(10)(aa), which is now subject to IMMI 17/060, as set out above.
For the reasons given above, the Tribunal is not satisfied that Medioz meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
Section 376 certificate
As advised in its letter of 27 August 2018, the Department has issued a s.376 certificate, with the release of the information to which the certificate is subject being at the discretion of the Tribunal.
As noted in the 27 August 2018 letter, the Tribunal considers the certificate to be valid. The Tribunal provided a copy of the certificate under cover of its 27 August 2018 letter and invited submissions, if any, as to the validity of the certificate. No submissions in this regard were sought to be made.
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 Trotter
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 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.
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