Melbournians Furniture (Migration)

Melbournians Furniture (Migration) [2024] AATA 3923 (11 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Melbournians Furniture
CASE NUMBER:  2101163
HOME AFFAIRS REFERENCE(S):          BCC2020/523466
MEMBER:Peter Newton SC
DATE:11 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 11 June 2024 at 10:19am
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – genuine position – no response to invitation to provide information addressing requirements – nominee sister of director of applicant – labour market testing and genuine skill shortage – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73
CASE
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 18 January 2021 (Department’s Decision) refusing to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied for approval on 21 February 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 Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub regulation 2.72(1) because the delegate did not consider the position associated with the nominated occupation to be genuine.
The applicant lodged with the Tribunal an application to review the Department’s Decision. By letter sent by email to the applicant on 11 August 2023, the Tribunal invited the applicant to provide information addressing the requirements of reg 2.72 of the Regulations. The Invitation requested the applicant to provide the information, in writing, by 25 August 2023. There is no record on the Tribunal’s file of a response by the applicant to the Invitation. The Invitation notified the applicant that if it did not provide the requested information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information and the applicant will lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present argument.
As the applicant did not respond to the Tribunal’s request for information sent on 11 August 2023, the Tribunal has determined the application for review on the information available on the Department’s file relating to the applicant’s Nomination for a Temporary Skill Shortage Visa lodged on 21 February 2020 and the Tribunal’s file relating to the application to review the Department’s Decision.
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 must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Department’s file includes a copy of the Nomination for a Temporary Skill Shortage Visa lodged on 21 February 2020 (Nomination). The Nomination nominates Mr Hasnain Khandoker for the position of Accountant (General) ANZSCO code 221111. The Nomination is in the approved form. It contains the required certifications. There is no record on the Department’s file that the fee and training contribution charge has or has not been paid. For the purpose only of assessing compliance with reg 2.73, I proceed on the assumptions that the required fee and charge have been paid.
For these reasons the requirements of reg 2.72(3) are met.
No adverse information known to Immigration
Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
The information on the Department’s file establishes that the applicant: - was incorporated on 24 February 2011; it has been trading since 1 April 2011; it specialises in retail wholesale sales of household and office furniture it is solvent. There is no information on the Department’s file recording any adverse information about the applicant or a person associated with the applicant.
For these reasons the requirements of reg 2.72(4) are met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
The Department’s file contains no record that the applicant has approval as a Standard Business Sponsor. On 11 August 2023 the Tribunal sent by email a letter to the applicant inviting the applicant to provide information. The Invitation requested information about current approval as a Standard Business Sponsor or being party to an approved work agreement. The Tribunal’s file contains no record of the applicant responding to the Invitation. There is no record on the Tribunal’s file that the applicant has approval as a Standard Business Sponsor.
For these reasons the requirements of reg 2.72(5) are not met.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The applicant provided to the Tribunal a copy of the Department’s Decision. The Department’s Decision records:
“Paragraph 2.72(10)(a) of the Migration Regulations requires that the position associated with the nominated occupation is genuine.
The intent of the Temporary Skill Shortage (subclass 482) visa program is to enable
Australian businesses to temporarily fill short to medium term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position.
The program is not intended to be used for non-citizens to establish a business in Australia and sponsor themselves, or to facilitate the grant of a visa for friends or family members who wish to live in Australia. [Emphasis added]
In making my assessment, I have considered all of the information provided with the
application in relation to the nominated position and the nature of the sponsor's business. I have referred to the documents that are available in support of this application including, but not limited to documents relating to the business and staffing structure, the application form.
I have also considered the primary reason for the nomination of this position - that is,
whether the nomination has been lodged to address the need of the business for a skilled worker, or to facilitate the grant of a visa for the nominee.
It appears from the evidence that the nominee, is related to the Director of MELBOURNIANS FURNITURE PTY LTD. The applicant declared that she is the sister of the nominee.
I note the applicant has provided evidence of its labour market testing efforts, however, I have concerns of how impartial their decision was to appoint the nominee over another applicant given their familial relationship.
While, I also acknowledge the nominee has been employed by the applicant, there is no other information before me to be satisfied that the position has been nominated to address a skill shortage as the program intends. Therefore, I am not satisfied that the evidence provided demonstrates that the nomination was lodged to fill a genuine skill shortage, rather than to facilitate the grant of a visa for the nominee.
I consider that the weight of the evidence indicates that the primary purpose of nominating this position is to facilitate the stay of the nominee in Australia rather than to fill a genuine vacancy or skill shortage.
Consequently I do not consider the position associated with the nominated occupation to be genuine, and the applicant does not meet paragraph 2.72(10)(a).
I am therefore not satisfied that the applicant meets subregulation 2.72(10).”
The Tribunal’s file contains no record of any information provided by the applicant in relation to the above findings by the Department. There is no information on the Tribunal’s file that support a finding that the position associated with the nominated occupation is genuine. There is no information on the Tribunal’s file that enable the Tribunal to disregard the findings made by the Department.
The Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
For these reasons the requirements of reg 2.72(10) are not met.
Conclusion
For the reasons given above, the applicant does not meet all the applicable criteria for the nomination to be approved. As the Tribunal finds that the applicant does not meet reg 2.72(5) and reg 2.72(10) of the Regulations, it is not necessary to consider the remaining criteria for approval of the Nomination.
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
The Tribunal affirms the decision not to approve the nomination.
Peter Newton SC
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)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.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one 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.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii)      …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii)      it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)      it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…

[2024] AATA 3923

11 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Natural Justice