Motion Osteopathy (Migration)

Motion Osteopathy (Migration) [2022] AATA 2992 (14 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Motion Osteopathy
CASE NUMBER:  1915128
HOME AFFAIRS REFERENCE(S):          BCC2019/2783466
MEMBER:Katie Malyon
DATE:14 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 14 July 2022 at 12:08 pm
CATCHWORDS
MIGRATION – nomination – Medium-term stream– applicant failed to provide the requested information within the prescribed period – insufficient evidence was provided to demonstrate that labour market testing was undertaken as required –position associated with the occupation is not genuine– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GBA, 359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 4 June 2019 to refuse to approve the nomination made by the applicant, Motion Osteopathy Pty Ltd ABN 609 648 311 (the Company), under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The Company applied for approval on 30 May 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. These criteria are extracted in the Attachment to this decision. Additional criteria in relation to labour market testing are specified in s 140GBA of the Act. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the Company’s nomination of the position of Osteopath ANZSCO 252112 for French national Marie Lombard on the basis that insufficient evidence was provided to demonstrate that labour market testing was undertaken as required by

s 140GBA(3)(aa) of the Act and the relevant legislative instrument IMMI 18/036. A copy of the delegate’s decision was provided to the Tribunal.
Accompanying its application for review lodged on 12 June 2016, the Company provided a job advertisement from Indeed dated 6 June 2019, two invoices from LinkedIn for its advertisement placed on the LinkedIn website and a job advertisement published on Osteopath Australia’s website dated 12 June 2019.
To enable the Tribunal to assess whether the Company meets all of the relevant requirements for approval of its nomination, the Tribunal wrote to the Company pursuant to

s 359(2) of the Act on 17 June 2022 and invited it to provide updated and current information about its business and the nominated position. The Tribunal’s letter was sent to the person appointed by the Company to receive communications on its behalf, Company Director Dr Hilary Cornish.
The Tribunal’s s 359(2) letter advised the Company that, if information in writing was not received by the Tribunal by 1 July 2022 or if it did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and further, it would lose any entitlement the Company might otherwise have had under the Act to appear before it to give evidence and present arguments.
No response to the Tribunal’s s 359(2) letter has been provided by the Company. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, the Company is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s 363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support the review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the current COVID-19 pandemic, evidence that the Company meets all relevant requirements in reg 2.72 of the Regulations and s 140GBA of the Act is likely to be forthcoming, whether it has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the Company. The Tribunal has also taken into account the decisions in 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 have held that the Tribunal is not required to indefinitely defer its decision-making processes.
The Tribunal’s s 359(2) letter invited the Company to provide updated and current information to demonstrate that its nomination meets all of the relevant requirements in reg 2.72 of the Regulations and s 140GBA of the Act. The Tribunal is satisfied that its s 359(2) letter was properly dispatched to the Company’s authorised recipient, Dr Hilary Cornish, to her email address provided in the review application. The Company has failed to provide any documentation in response to the Tribunal’s invitation within the prescribed period set for this purpose, and nor has it requested additional time in which to provide this information.
It is evident that the Company has not proactively engaged with the review. Having considered Departmental records, it is apparent that a later nomination lodged by the Company for the position of Osteopath ANZSCO 252112 in respect of Ms Lombard was approved on 23 September 2019 (that is, just a fortnight after the current review application was refused) and Ms Lombard was subsequently granted a Subclass 482 visa sponsored by the Company on 15 October 2019. Following expiry of Ms Lombard’s Subclass 482 visa on 31 May 2021, she successfully applied for a Subclass 491 Skilled Work Regional (Provisional) visa which was approved on 31 May 2021 and is valid for 5 years expiring 31 May 2026.
In the circumstances of this case, the Tribunal considers that Company has had sufficient time in which to address all of the issues arising on review, or request an extension of time to address these issues. Having regard to information set out above at para [10], it appears that the Company no longer wishes to sponsor Ms Lombard on a Subclass 482 visa. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with

s 359C of the Act.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the Company’s nomination.
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 all of the relevant requirements in reg 2.72: s 140GB(2) of the Act. 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 of the Act must be met.
Although, as noted above, the delegate refused the Company’s nomination of the position of Osteopath for Ms Lombard on the basis that insufficient evidence was provided to confirm labour market testing was undertaken as required by s 140GBA(3)(aa) of the Act and IMMI 18/036, the Tribunal has considered whether an another requirement in reg 2.72(10) of the Regulations.
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 Department’s file contains a copy of a signed Employment Agreement dated 3 June 2019 made between the Company and Ms Lombard which provides that Mr Lombard will be paid a salary of $53,900 per annum. However, no evidence about the Company’s business operations were provided to the Department to demonstrate how the business will be able to financially support the position. Despite the Tribunal in its s 359(2) letter requesting the Company provide current and updated evidence that it is actively operating a business which requires the services of the nominee to work as an Osteopath, no such evidence has been provided. Relevantly, the Company has not provided evidence of recent Financial Reports, Company Tax Returns or Business Activity Statements. Further, no evidence of its organisational structure has been provided to the Tribunal.
Having regard to available evidence, the Tribunal cannot be satisfied that the position associated with the nominated occupation of Osteopath is genuine and that it requires the nominee Ms Lombard to fill the position on a full-time basis as the holder of a Subclass 482 visa. As such, the Tribunal finds that the requirements in reg 2.72(10)(a) and reg 2.72(10)(b) of the Regulations are not met. Accordingly, the requirements of reg 2.72(10) are not met.
Having regard to these findings, it has not been necessary for the Tribunal to consider the remaining criteria for approval of the Company’s nomination. In these circumstances, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Katie Malyon

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)…
oOOo

[2022] AATA 2992

14 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Jurisdiction