MODERNSPECS CARLINGFORD PTY LTD (Migration)

MODERNSPECS CARLINGFORD PTY LTD (Migration) [2023] AATA 3647 (24 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MODERNSPECS CARLINGFORD PTY LTD
REPRESENTATIVE:  Mr Manoj Kumar Nanda (MARN: 1568823)
CASE NUMBER:  2102824
HOME AFFAIRS REFERENCE(S):          BCC2020/1066722
MEMBER:Alan McMurran
DATE:24 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 24 October 2023 at 1:25pm

CATCHWORDS
MIGRATION – approval of a nomination – Medium-term stream – occupation of Accountant (General) – genuine position – nominee left the applicant’s employment – no contract of employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 359, 360
Migration Regulations 1994, rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 7 March 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 24 February 2021 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 9 March 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 cl 2.72(10)(a) of the Regulations because based on the nominated occupation of Accountant (General) ANZSCO 221111, in the context described for the business and the business setting, its financial profile and staffing structure, and its activities and business scale, the position was not genuine.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
Background
On 14 September 2021, the Tribunal received a letter from the applicant (dated 25 August 2021) to the Tribunal noting that the sponsored nominee, Shuyi Liu, had left the applicant’s employ. The applicant had made a related application to the Tribunal for review[1] of the associated visa refusal on failure of the nomination.
[1] Tribunal case 2106793
The applicant nominator informed the Tribunal that the nominator “no longer wish to sponsor above applicant for Permanent Residency Visa application.” No withdrawal form was received.
On 14 September 2021, having received the withdrawal request, the Tribunal wrote to the applicant asking for completion of the standard request for withdrawal. The applicant was referred to the relevant document for completion.
On 23 September 2021, the Tribunal contacted a director of the applicant to follow-up. The director informed the Tribunal that he knew of the employee, but knew nothing about the withdrawal of the nomination and would “call back”. He did not do so.
On 28 September 2021, the Tribunal contacted the representative. The representative responded he had received the withdrawal form but had not heard from his nominator client. The representative said he would respond to the Tribunal request, but did not do so.
On 18 October 2021, the Tribunal again contacted the representative but said he had not heard from the director about the withdrawal, but would respond. He did not do so.
On 8 September 2023, following constitution of the case for review, the Tribunal wrote to the applicant under section 359 of the Act and requested information. The letter sought updated and current information to support the nomination including information concerning the applicant’s current employment, duties and responsibilities, and annual market salary. The Tribunal did not receive any response to its request.
On 19 October 2023, a Tribunal officer contacted the representative. The representative advised that to his knowledge, the visa nominee is not currently employed by the applicant. Again, the applicant by the representative was asked to confirm if the application would be withdrawn. The representative said he would respond the next day. He did not do so.
On 20 October 2021 and again on 23 October 2021, a Tribunal officer again attempted to call the representative with no response. Multiple requests from the Tribunal have failed to elicit any responses.
As the applicant has not provided completion of a withdrawal request, and has not responded to the Tribunal requests under s359 of the Act, s360 of the Act applies. This provides that where the applicant has failed to give information to the Tribunal when invited to do so, and has not requested an extension before the time for giving the information had passed, the Tribunal may make a decision on the review without taking any further action to obtain the information.
In that circumstance, s 360 of the Act provides that the applicant is not entitled to appear before the Tribunal. Accordingly, the Tribunal has proceeded to determine the review on the information before it.
The applicant was represented in relation to the review by a registered migration agent..
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.
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 Tribunal has not received any current information at the time of its decision concerning the nominee’s current position in the applicant’s business, any duties or tasks undertaken by the nominee, or whether in fact the nominee is employed on a full-time basis. Despite being invited to do so, the applicant has provided no current information, other than to inform the Tribunal that the nominee, Shuyi Liu, “has left our company”.
The Tribunal has no information currently upon which it might determine on a qualitative assessment whether the nominee is performing the tasks associated with the occupation. The Tribunal is unable to compare the work, if any, performed by the nominee in the role as against the tasks described by ANZSCO for the occupation. This is because the available information is that the employee is no longer employed.
The representative of the applicant has not provided any additional information. A Director of the applicant has informed the Tribunal that the nominee is no longer employed by the nominator in the role, or at all. Two years have passed since that information was communicated in 2021, and despite the opportunity to update the information, nothing has been provided to the Tribunal, nor has the application been formally withdrawn as was anticipated.
On the available information, it is not possible for the Tribunal to conclude that the position exists. The Tribunal finds therefore that there is no full-time position offered or available to the nominee and in the circumstances, it is not reasonable to disregard this requirement.
For these reasons the requirements of reg 2.72(10) 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, unless the nominated occupation is specified in the relevant instrument. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)).
In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met. The Tribunal finds on the available information that the sponsored nominee is not employed by the applicant on a full-time basis, or at all. No documentation has been produced as requested to evidence the nominee’s employment.
As the Tribunal finds that the nominee will not be engaged as an employee under a written contract of employment by the applicant, or an associated entity, and that the applicant will not give the Minister a copy of an updated contract signed by the employer and nominee, as invited, the requirements under the regulation are not satisfied.
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. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Alan McMurran
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 3647

24 October 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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