Melbournians Furniture (Migration) - [2024] AATA 3923

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…

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: [2024] AATA 3923
Decision Date: 11 June 2024

CaseChat Overview and Summary

This matter concerned an application by Melbournians Furniture Pty Ltd for review of a decision by a delegate of the Minister for Home Affairs to refuse to approve its nomination of a position for a Subclass 482 visa under the Medium-term stream. The applicant had lodged the nomination on 21 February 2020. The delegate refused approval on the basis that the nominated position was not genuine, as required by subregulation 2.72(1) of the Migration Regulations 1994. The applicant subsequently applied to the Tribunal for a review of this decision.

The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination, specifically focusing on whether the nominated position was genuine. The Tribunal also considered whether the applicant was an approved work sponsor and had met other regulatory requirements, including those relating to the nomination process, the absence of adverse information, and labour market testing. The Tribunal had invited the applicant to provide further information to address these requirements, but no response was received.

In its reasoning, the Tribunal noted that while the nomination process and the absence of adverse information appeared to be met, a critical deficiency was the applicant's status as a standard business sponsor. The Department's file contained no record of such approval, and the applicant failed to provide this information when requested by the Tribunal. Furthermore, the Tribunal considered the genuineness of the position, referencing the delegate's reasoning which highlighted the familial relationship between the nominee and the director of the applicant company. The delegate concluded that the nomination appeared to be facilitated for the nominee's benefit rather than to fill a genuine skill shortage, a concern amplified by the lack of response from the applicant to address these issues.

Consequently, the Tribunal affirmed the delegate's decision. It found that the applicant had not met the requirement of being a standard business sponsor and that the nominated position was not considered genuine. The Tribunal made its decision based on the information available on the Department's file and the Tribunal's own file, as the applicant did not respond to the invitation to provide further information.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 enableAustralian 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 theapplication 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).”