O'Briens Window Cleaning Services Pty Ltd (Migration) [2024] AATA 2187 (20 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: O'Briens Window Cleaning Services Pty Ltd
REPRESENTATIVE: Ms Sylvia Arroyo (MARN 0640213)
CASE NUMBER: 2115043
HOME AFFAIRS REFERENCE(S): BCC2020/2901958
MEMBER:Peter Papadopoulos
DATE:20 June 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 20 June 2024 at 2:58pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Contract Administrator – genuine position – organisational structure of the business – significant growth in revenue and operations – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBAMigration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30STATEMENT 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 15 October 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 30 December 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 Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl 2.72(10)(a) because they were not satisfied that the position associated with the occupation was genuine.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving 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). 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.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s…
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- O'Briens Window Cleaning Services Pty Ltd (Migration) [2024] AATA 2187
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- [2024] AATA 2187
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CaseChat Overview and Summary
The Tribunal was required to determine if the applicant, O'Briens Window Cleaning Services Pty Ltd, had satisfied all the relevant criteria for the approval of the nomination. This included assessing whether the nomination was made in accordance with the prescribed process, whether there was any adverse information known to Immigration, whether the nominator was a standard business sponsor, and whether any debts under section 140ZO of the Act had been paid. Additionally, the Tribunal considered whether the nominated occupation and its code corresponded to specified occupations in the relevant legislative instrument.
The Tribunal found that the applicant had complied with the procedural requirements for making the nomination, including using the approved form and paying the required fees. It was satisfied that no adverse information was known to Immigration concerning the applicant or associated persons, and that the applicant held the status of a standard business sponsor. The Tribunal also confirmed that the nominated occupation, Contract Administrator (ANZSCO 511111), was listed in the relevant instrument for the Short-term stream of the Subclass 482 visa. Based on these findings, the Tribunal concluded that all applicable criteria for the nomination's approval had been met.
Consequently, the Tribunal set aside the original decision not to approve the nomination and substituted a decision approving the nomination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For these reasons, the Tribunal is satisfied that the nominator made the nomination in accordance with the requirements of reg 2.73. Accordingly, reg 2.72(3) has been met.No adverse information known to Immigration Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. There is no adverse information before the Tribunal about the applicant or a person associated with the applicant. For these reasons, the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. Departmental records provide that the applicant has held the status of standard business sponsor pursuant to valid sponsorship agreements for the periods 7 August 2017 – 7 August 2022 and 13 December 2022 – 13 December 2027. The Tribunal finds that the applicant is a standard business sponsor pursuant to a valid sponsorship agreement, and that the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream. For these reasons, the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. The Tribunal has no evidence before it that the applicant has any outstanding debt under s 140ZO. For these reasons, the requirements of reg 2.72(5A) are met.Requirements for existing Subclass 457 or Subclass 482 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14). As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.Specified occupation Regulation 2.72(8) 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, Migration (LIN 19/048: Specification of Occupations – Subclass 482 Visa) Instrument 2019. The occupation must also apply to the nominee in accordance with the instrument.