Millfair Pty Ltd (Migration)

Millfair Pty Ltd (Migration) [2023] AATA 3580 (10 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Millfair Pty Ltd
REPRESENTATIVE:  Mr Benjamin Kramer (MARN: 1386609)
CASE NUMBER:  1935425
HOME AFFAIRS REFERENCE(S):          BCC2019/6144537
MEMBER:C. Packer
DATE:10 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 10 October 2023 at 2.15pm

CATCHWORDS
MIGRATION – approval of a nomination – Medium-term stream – genuine position – labour market testing – standard business sponsorship approval expired – employer not an associated entity – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 359, 363
Migration Regulations 1994, rr 2.72, 2.73
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 December 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 20 November 2019. 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 reg 2.72(10) because the delegate was no satisfied that the position associated with the nominated occupation was genuine.
On 1 September 2023 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting the applicant to provide comments or response on information. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response and information was not provided in writing by 15 September 2023 the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 7 September 2023 the applicant requested further time of 2-3 weeks. On 7 September 2023 the Tribunal agreed to grant an extension of time to 27 September 2023.
On 15 September 2023 the applicant stated in part: “Further to our email of 07 September 2023 below, we would like to reiterate our request for additional time to provide the requested information as per the Invitation dated 01 September 2023. Our client's accountants and staff are close to completing the requested documents.”
On 15 September 2023 the Tribunal’s response stated in part: “The Member notes that on 7 September 2023 the Tribunal granted further time to 27 September 2023 to provide comments or a response.” After careful consideration the Tribunal decided not to grant a second extension of time.
However, the applicant did not provide any comments or response within the prescribed and extended period. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.
The applicant has not provided comments or a response to information to the date of this decision. The Tribunal has decided to proceed to a decision without providing further time to provide comments or a response to information.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. However, Departmental systems show that Millfair Pty Ltd was approved as a business sponsor from 27/5/2017 to 27/5/2022. Millfair Pty Ltd is not now an approved standard business sponsor. For these reasons the requirements of reg 2.72(5) are not met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister. Where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)).
An ABN Lookup shows Millfair Pty Limited has ABN 97060756729, and is not currently registered for GST. An ABN Lookup of ABN 71503876142 (open source) shows the entity name The Trustee for NELSON UNIT TRUST from 1/7/2006. It continues to show the trading name The Arthouse Hotel, but was last updated 16/6/2016. It does not show any association with Alsimas Pty Ltd ATF The Arthouse Hotel Unit Trust (ABN 29447448216).
Accordingly, the Tribunal is not satisfied that: Alsimas Pty Ltd ATF The Arthouse Hotel Unit Trust is an associated entity of the applicant.
Documents concerning the nominee include:
·The nominee’s Letter of Employment signed 14/11/2019 was stated to be between the nominee and ‘Millfair Pty Ltd (Millfair)’ for the period ’13 Nov 2019 to the 13 Nov 2021’.
·The PAYG Payment Summary 2021 concerning the nominee showed the payer’s name as Millfair Pty Limited ATF Nelson Unit Trust (ABN 71503876142).
·The PAYG Payment Summary 2022 concerning the nominee showed the payer’s name as Alsimas Pty Ltd ATF The Arthouse Hotel Unit Trust (ABN 29447448216).
In sum, the Tribunal finds that the nominee had been employed by Millfair Pty Ltd up to 2021. Subsequently, he was employed and paid by a new entity, Alsimas Pty Ltd ATF The Arthouse Hotel Unit Trust (ABN 29447448216). The Tribunal finds the nominee will not be engaged as an employee under a written contract of employment by the applicant or an associated entity. For these reasons the requirements of reg 2.72(11) are not met.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. There may be other requirements that the applicant does not meet, however the Tribunal has not gone on to consider the remaining criteria. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
C. Packer
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)…

[2023] AATA 3580

10 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction