Muhammad Ihssan Arafeh (Migration)

Muhammad Ihssan Arafeh (Migration) [2022] AATA 2993 (12 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Muhammad Ihssan Arafeh
REPRESENTATIVE:  Miss Kathryn Smith (MARN: 1384452)
CASE NUMBER:  1914017
HOME AFFAIRS REFERENCE(S):          BCC2019/2355955
MEMBER:Katie Malyon
DATE:12 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 12 July 2022 at 3:31 pm

CATCHWORDS
MIGRATION – nomination – Medium-term stream– applicant failed to provide the requested information within the prescribed period – insufficient information was provided to the delegate to demonstrate that the position associated with the nominated occupation was genuine and full-time – 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 14 May 2019 to refuse to approve the nomination made by the applicant, sole trader Muhammad Ihssan Arafeh T/A Safa Autos ABN 67 982 514 169, under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
Muhammad Arafeh applied for approval on 2 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 by a person. 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 Muhammad Arafeh’s nomination of the position of Motorcycle Mechanic ANSZCO 321213 for Indian national Sajidbhai Yusufbhai Vahora on the basis that insufficient information was provided to the delegate to demonstrate that the position associated with the nominated occupation was genuine and full-time. As such, the requirements in reg 2.72(10) of the Regulations were not met. A copy of the delegate’s decision was provided to the Tribunal.
Inconsistent with cl 5.1 of the Tribunal’s Practice Direction - Migration and Refugee Matters issued 2 August 2018,[1] the representative did not, when she lodged Muhammad Arafeh’s application for review, provide all relevant evidence and a detailed submission setting out Mr Arafeh’s claims: nor did she do so within 14 days of the date of lodgement or the review. No documentation was lodged with the Tribunal in support of the review application, apart from a copy of the delegate’s decision. To enable the Tribunal to assess whether Muhammad Arafeh meets all of the relevant requirements for approval of his nomination, the Tribunal wrote to Mr Arafeh pursuant to s 359(2) of the Act on 17 June 2022 and invited him to provide updated and current information about his business and the nominated position. The Tribunal’s letter was sent to Muhammad Arafeh’s authorised representative, Miss Kathryn Smith of Results Migration.
[1] Practice-Direction-Migration-and-Refugee-Matters.pdf (aat.gov.au)
The Tribunal’s s 359(2) letter advised Muhammad Arafeh that if information in writing was not received by the Tribunal by 1 July 2022 or, if he 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, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence.
On 30 June 2022, the Tribunal received an email from Shadi Golchin of Results Migration confirming that Results Migration no longer acts for Muhammad Arafeh, that Miss Smith has left Results Migration and he has made numerous unsuccessful attempts to contact Mr Arafeh regarding further instructions.
On 4 July 2022, the Tribunal provided Muhammad Arafeh with a copy of its s 359(2) letter dated 17 June 2022.
Muhammad Arafeh has not provided any response to the Tribunal’s s 359(2) invitation. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, Mr Arafeh 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] FAFC 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 applicant 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 applicant meets all the relevant requirements in reg 2.72 of the Regulations and s 140GBA of the Act is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to him. 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 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 applicant to provide updated and current information to demonstrate that the 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 Muhammad Arafeh’s authorised recipient Miss Kathryn Smith and, after receiving confirmation from Results Migration that the firm no longer acts for the Mr Arafeh, it emailed a copy of its s 359(2) letter direct to Muhammad Arafeh. Mr Arafeh has failed to provide any documentation in response to the Tribunal’s invitation within the prescribed period set for this purpose and nor has he requested additional time in which to provide the requested information. It is evident that Muhammad Arafeh has not proactively participated in the review process.
In the circumstances of this case, the Tribunal considers the applicant 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. 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 359(C) of the Act.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the 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 the 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.
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 limited documentation about the nominated position. It contains a position description and an Organisation Chart. The nomination indicates that the nominee Mr Vahora will be paid a salary of $60,000 per annum. However, no evidence whatsoever was provided to the Department, or the Tribunal, to demonstrate how the business will be able to financially support the position. Muhammad Arafeh has not provided evidence of Financial Statements, Tax Returns or recent Business Activity Statements. In passing, the Tribunal notes that publicly available records from the Australian Business Register confirm that that Muhammad Ihssan Arafeh’s ABN was cancelled on 14 June 2022.[2]
[2] Current details for ABN 67 982 514 169 | ABN Lookup (business.gov.au)
Based on available evidence, the Tribunal is not satisfied that the position associated with the nominated occupation of Motorcycle Mechanic ANSZCO 321213 is a genuine and full-time position. Accordingly, the requirements of reg.2.72(10) of the Regulations are not met.
Having regard to this finding, it has not been necessary for the Tribunal to consider the remaining criteria for approval of the 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 2993

12 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal