NEETA SHARMA (Migration)

NEETA SHARMA (Migration) [2017] AATA 1200 (19 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NEETA SHARMA
CASE NUMBER:  1517372
DIBP REFERENCE(S):  BCC2015/2841441
MEMBER:Karen Synon
DATE:19 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 19 July 2017 at 10:09am
CATCHWORDS
Migration – Nomination – Not a genuine position – Hairdresser – No response to tribunal request – Lost entitlement to hearing
LEGISLATION

Migration Act 1958, s 140GB, s.359(2), 359C, 360(3), 363A
Migration Regulations 1994, r 2.72, r 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 Immigration on 28 November 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 29 September 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the 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. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because she was not satisfied that the nominated occupation was genuine.
The applicant applied for review of the primary decision on 16 December 2015 and provided a copy of the department’s decision.
The applicant was represented in relation to the review by its registered migration agent.
On 10 April 2017 the review applicant (‘the applicant’) was invited to attend a Callover on 23 May 2017. In the letter it was explained that the purpose of this Callover was to establish whether the case was ready to be listed for a hearing and type of issues that would be discussed.
On 10 April 2017 the Tribunal received an email from the applicant’s registered migration agent and representative requesting that the Callover be postponed until after August because he was travelling overseas following a surgical procedure.
On 13 April 2017 the Tribunal responded in the following terms:
This case will shortly be constituted to a Member for action. It has been identified as one of a cohort of older cases with the view of holding a hearing in July.
Therefore the Tribunal is not inclined to agree to your request to postpone the call-over for a period in excess of 4 months. For the same reason a hearing will not be delayed until late August.
The Tribunal therefore asks that you consider allocating this case to another migration agent within your organisation or one affiliated with your organisation (assuming that you have made such arrangements given your proposed lengthy absence from Australia).
Alternatively you may participate in the call over and the hearing via telephone from overseas. Please consult with your client and advise the Tribunal at your earliest convenience what arrangements you will make to participate in the call-over.
These call-overs have been initiated to assist representatives and applicants to better prepare for their hearings at which an oral decision may be given.
However if the applicant would prefer not to participate in a call-over please advise the Tribunal of this as soon as possible. In that case a letter inviting information will shortly be issued in accordance with section 359(2) of the Migration Act.
The Tribunal notes that since this application for review was lodged 16 months ago no submissions and/or supporting information has been received. If the applicant wishes to withdraw this application for review please advise the Tribunal as soon as possible.
On 1 May 2017 the Tribunal again wrote to the applicant’s registered migration agent and authorised representative noting no response had been received to its communication of 13 April 2017 and requesting a response.
In response on 1 May 2017 the Tribunal was advised that the applicant would be attending the Callover with a migration agent. The applicant did not attend the Callover on 23 May 2017 however was represented by a registered migration agent. It was explained that the purpose of the Callover was to establish whether the case was ready to be listed for a hearing and type of issues that would be discussed. The migration agent was advised that a s.359(2) would shortly be issued and that if the review applicant fails to provide the information within the specified time period in response to the notice – the review applicant loses the right to have a hearing and so no hearing will be held, and the Tribunal will make a decision on the information before it.
On 24 May 2017 the Tribunal wrote to the applicant, via her registered migration agent and authorised representative, in accordance with s.359(2) of the Act, inviting the following information in writing:
Information that demonstrates that Neeta Sharma meets all of the requirements of the criteria in regulation 2.27 of the Migration Regulations 1994 at the time of the Tribunal’s decision.
On 31 May 2017 an extension of time of 4 weeks was requested to respond to the Tribunal’s s.359(2) invitation.
On 7 June 2017 the Tribunal responded noting that is only able to grant one extension of time for 14 days which was explained at the Callover and therefore granted an extension of time in which to respond until 21 June 2017.
The applicant did not provide the information within the prescribed 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 an 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. The Tribunal is satisfied that it has communicated with the applicant via her authorised recipient at the representative’s advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the information. In making this decision the Tribunal notes that the applicant has not provided any substantive materials, written arguments or information other than the application for review and a copy of the department’s decision on 16 December 2015, a period of over 19 months.
Further, noting that an extension of time of 4 weeks was requested but was not able to be granted, the Tribunal has delayed finalising this decision for a further period of 4 weeks since the extended prescribed date for providing the information ended and would have considered any additional information provided in making this decision however none has been provided.
For the following reasons, the Tribunal has decided 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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
In the nomination application lodged on 29 September 2015, the applicant nominated the position of ‘Hairdresser’. The applicant lodged the application for review on 16 January 2015 but has not provided any submissions or further evidence to the Tribunal since that date, including anything addressing the concerns raised by the delegate.
The Tribunal notes that the primary decision records that the applicant operates a very small, home-based salon staffed by the owner manager and the one hairdresser, both part time. The delegate considered the claim that the business is growing and that there is demand for services and plans for growth but was not satisfied there was sufficient independently verifiable evidence of (then) current business activity levels.
In the absence of any submissions or evidence being provided to the Tribunal, it has considered all of the evidence provided to the department in support of the nomination application. This includes: the letter of engagement; advertisements on Gumtree; a submission titled ‘Looks Hair and Beauty by Neeta’; evidence of the business registration; and certification of a registered business premises.
The Tribunal notes that the material relating the position appears to have been provided to the Department over 20 months ago and that although the above limited evidence was provided, this material is now substantially out of date. The applicant has not provided to the Tribunal any recent information about the need for the position or the genuineness of the position, such as information about the duties of the position and how the position fits within the limited size and nature of the business. This is despite the delegate specifically finding that there was insufficient evidence that goes to the scale, scope and staffing structure of the business to indicate that the position is genuine.
The applicant did not respond, within the extended prescribed period, to the Tribunal's letter of 24 May 2017 inviting her to provide information which demonstrates that the nomination meets all the requirements of Regulations 2.72 including the genuineness of the position: r.2.72(10)(f). Nor has any information been received in the four weeks since that extended prescribed period ended or indeed at any stage during the review period.
The Tribunal has considered all the information available to it but does not consider it to be sufficient to satisfy the Tribunal that the position is genuine. As no additional information has been provided to the Tribunal and because the applicant has lost her entitlement to a hearing and the Tribunal was therefore not able to take oral evidence from Neeta Sharma regarding the genuineness of the position or why the applicant believes the position associated with the nominated occupation is genuine, the Tribunal only has very limited and significantly out-dated information before it.
At the time of decision, the Tribunal is not satisfied that there is sufficient recent evidence about the nature of the position or the operations of the applicant. On the limited evidence before it, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
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.
Karen Synon
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.
(7A)In addition to subregulation (6):
(a)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)    the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)     the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)    the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)     there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)    the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)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.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)     are provided; or
(ii)    would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)    if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)    if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)     the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)    if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)    unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)     the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)    the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)     the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)    the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2017] AATA 1200

19 July 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction