Mister Close Investments Pty Ltd (Migration)

[2021] AATA 4916

Mister Close Investments Pty Ltd (Migration) [2021] AATA 4916 (10 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mister Close Investments Pty Ltd

CASE NUMBER:  1836148

HOME AFFAIRS REFERENCE(S):          BCC2018/3623653

MEMBER:Karen McNamara

DATE:10 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 10 December 2021 at 1:11pm

CATCHWORDS
MIGRATION – nomination – Pastrycook – applicant failed to provide the information within the prescribed period – occupation of Pastrycook (ANZSCO 351112) did not apply to the nominee in accordance with the relevant instrument – no updated and current information provided – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GBA, 359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 November 2018 to refuse to approve the application by Mister Close Investments Pty Ltd (the applicant) for nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 24 September 2018 nominating the occupation of Pastrycook (ANZSCO 351112) to be undertaken by Darshnaben Maheshkumar Patel (the nominee).

3. A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and r.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.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(8)(b) because the occupation of Pastrycook (ANZSCO 351112) did not apply to the nominee in accordance with the relevant instrument.

5. The applicant lodged an application for review with the Tribunal on 10 December 2018. The review application was accompanied by a copy of the delegate’s decision.

6. On 8 November 2021, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, (dispatched by email to the authorised recipient), inviting the applicant to provide updated and current information demonstrating that the applicant met all the relevant s.140GBA and r.2.72 criteria (not just the one that the delegate found was not met). The Tribunal provided detailed examples of the kind of information that would assist it. The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.2.72 and s.140GB are met at the time of its decision.

7. The invitation was sent to the authorised recipient at the last email address provided in connection with the review and advised that, if the information was not provided in writing by 22 November 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information 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.

8. The Tribunal did not receive any response to its letter of 8 November 2021, nor has the applicant provided the information within the prescribed period and no extensions have been requested or granted. Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information (subsection 359C(1) of the Act) and pursuant to s.360(3) of the Act, the review 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. Accordingly, as the applicant failed to give the information requested within the prescribed period, the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

10. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review.

11. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

12. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made contact with the Tribunal to indicate that the information is forthcoming.

13. The Tribunal has also taken into account that the implications of not providing the information requested in the invitation from the Tribunal, were set out in the letter of 8 November 2021 and that the applicant has been aware of the delegate’s decision since 22 November 2018.

14. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act.

15. Additionally, the Tribunal notes that no contact has been made with it by the applicant since the lodgment of the review application on 10 December 2018.

16. In the circumstances, the Tribunal has decided to proceed to make its decision on the available evidence.

17. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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 r.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.

19. The Tribunal’s letter to the applicant of 8 November 2021, invited the applicant to provide updated and current information about all the relevant requirements in r.2.72 and s.140GB. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant did not respond to the Tribunal’s invitation and no updated and current information about the applicant, or its business has been received. As the applicant has not provided the information requested, the Tribunal is unable to be satisfied that at the time of this decision the applicant meets the requirements for approval of the nomination as a Standard Business Sponsor.

20. Regulation 2.72(8) 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 the instrument in force at the time the nomination is made, that is IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.

    Specified occupation

21. The applicant nominated the position of Pastrycook which is an occupation specified in IMMI 18/048 which specifies that the nominated position of Pastrycook (ANZSCO 351112) is subject to an ‘Inapplicability condition’, which means that the nomination of this occupation is subject to additional considerations or caveats.

22. The occupation of Pastrycook is subject to the following inapplicability condition:[1]

    (17) The position relates to mass or standardised production (as opposed to specialist production), including the following:

    (a)a position based in a franchise or factory;

    (b)a position that:

    (i)  involves full or partial production of food product for distribution to another location; or

    (ii)  predominantly involves the use of pre-prepared food product from another location.

    [1] IMMI 18/048.  Note 17.

23. The delegate, in refusing this nomination, found that evidence provided by the applicant, specifically comprising of the applicant’s website and photographs of the business, indicated that that the business may be supplied with pre-prepared pastry goods from suppliers and may not be involved in the preparing and baking of products from start to finish. Accordingly, the delegate formed the view that the nominated position predominantly involves the use of pre-prepared food product from another location and as such affected by a restriction specified in the relevant instrument.

24. The Tribunal invited the applicant to provide updated and current information about a range of matters, including the roles and duties of the nominated position, how they correspond to the position description in ANZSCO, where the nominated position sits within the organisation structure of the business, and their current financial circumstances. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide included: job descriptions; work samples; emails; correspondence and other examples of the daily tasks performed in the nominated position; the ANZSCO description of the nominated occupation; an organisational structure chart including all current and proposed employees; lodged tax returns for the last two financial years; business activity statements lodged with the ATO in the last 24 months; and financial statements showing profit and loss statements and balance sheets for the most recent two years. Further, if, as in this case, the nominated occupation was subject to an inapplicability condition (also referred to as a caveat), information about why the caveat does not apply in their circumstances. No response has been received to the Tribunal’s invitation to provide information.

25. The applicant has not provided current information about the roles and duties of the nominated position or how they correspond to the nominated occupation’s position description in ANZSCO. Nor have they provided current information relevant to the inapplicability conditions specified in IMMI 18/048 and described above.

26. In the circumstances, the Tribunal is unable to be satisfied that, at the time of its decision, the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 18/048, and that the occupation of Pastrycook is applicable to the nominee in accordance with the instrument. Accordingly, the requirements in r.2.72(8)(b) are not met.

27. For these reasons the application does not satisfy the requirements of r.2.72(8).

28. Further, the Tribunal requested updated and current information relevant to the requirements of r.2.72 that are also required to be satisfied for the nomination to be approved. In the absence of updated and current information as to those requirements, the Tribunal is also unable to be satisfied that the requirements of r.2.72 are met as required.

29. For the reasons given above, 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

30. The Tribunal affirms the decision not to approve the nomination.

    Karen McNamara
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    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)…