Oh Vienna PL (Migration)

Oh Vienna PL (Migration) [2022] AATA 1094 (26 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Oh Vienna PL
CASE NUMBER:  1910344
HOME AFFAIRS REFERENCE(S):          BCC2019/1638703
MEMBER:Susan Trotter
DATE:26 April 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 26 April 2022 at 11:36am
CATCHWORDS

MIGRATION – application for approval of nomination of position – annual market salary rate – no response to tribunal’s invitation to provide updated and current information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.72(15)(c), (f), 2.73
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA
Manna v MIAC [2014] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

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 10 April 2019 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 (previously Hausfrau Bakery Pty Ltd) applied for approval on 2 April 2019 nominating the occupation of Pastrycook to be undertaken by Danisyah Binte Zainal Abas (the nominee).
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.
The delegate refused the nomination on the basis that the applicant did not satisfy r.2.72(15) because the delegate was not satisfied that applicant determined the annual market salary rate (AMSR) in accordance with the relevant legislative instrument and as such the applicant did not satisfy the requirements of reg 2.72(15)(c).
The applicant lodged an application for review with the Tribunal on 25 April 2019 and provided a copy of the Department’s decision to the Tribunal. The Tribunal also has before it the Department file containing all information provided by the applicant and before the delegate at the time of their decision.
On 28 March 2022, the Tribunal wrote to the applicant via its authorised representative/recipient’s email address. The letter was issued pursuant to s.359(2) of the Act, inviting the applicant to provide updated and current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. The letter also noted that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.2.72 and s.140GB are met at the time of its decision.
The invitation was sent to the applicant at the last email address provided for its authorised representative/recipient in connection with the review and advised that, if the information was not provided in writing by 11 April 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
The Tribunal did not receive any response to its letter of 28 March 2022, nor the information invited to be provided, within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicant failed to provide the information invited to be provided within the prescribed time, s.359C(1) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s comments/response or to obtain the information invited to be provided.
The Courts have confirmed that where an applicant fails to give information within the prescribed period in response to an invitation issued under s.359(2) of the Act, ss.359C(1), 360(3) and 363A of the Act preclude the Tribunal from offering an applicant a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.
Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review.
In doing so, the Tribunal has 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 [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The invitation was not returned to sender as undeliverable mail.
The applicant has not provided the information invited to be provided, within the prescribed period set for this purpose nor has the applicant made contact with the Tribunal to indicate that the information is forthcoming.
The Tribunal has taken into account the fact that the implications of not providing the information requested in the invitation from the Tribunal were set out in the letter of 28 March 2022.
In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under r.2.72 of the Regulations and s.140GB 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). 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.
Annual earnings
Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in instrument IMMI 18/033 (currently $250,000). Regulation 2.57A provides for the meaning of ‘earnings’. Where r.2.72(15) applies, it requires that:
(a) the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: r.2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: r.1.03.
(b) the rate, excluding any non-monetary benefits (as defined in r.2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT, currently $53,900), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(d) and r.2.72(16)(a);
(c) the nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in r.2.72(10)(b) in relation to the need for a full-time position is disregarded under r.2.72(10A): r.2.72(15)(e) and r.2.72(16)(aa);
(d) the nominee’s annual earnings, excluding any non-monetary benefits (as defined in r.2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: r.2.72(15)(f) and r.2.72(16)(b); and
(e) either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: r.2.72(15)(g).
The delegate noted in their decision that the applicant indicated in their application form that they did not have an Australian worker employee in their workplace performing work equivalent to that of the nominated position. The applicant also indicated that an equivalent Australian worker would not be paid in accordance with an enterprise agreement or industrial award. The delegate further noted that the applicant had not provided any evidence and information demonstrating how they determined the AMSR specified in their application form such that the delegate was not satisfied that the applicant had determined the AMSR for the nominated occupation in accordance with the method specified and r.2.72(15)(c) was therefore not met as required.
At the time of the delegate’s decision the applicant had not provided the employment contracts or payslips of their equivalent Australian worker/s.
When lodging its application with the Tribunal, the applicant provided a letter stating that it did not understand the question ‘Is there another Australian worker employed by me who performs an equivalent job’ (in the application form) and that, in fact, there is an equivalent Permanent Resident in its employ who performs an equivalent job to the applicant, at the same pay level. It was stated that the other person was a pastry chef/baker and the nominee is a pastry chef but they do each other’s jobs on days off and holidays etc. It stated that the other person is paid $55,000 per annum as will be the nominee when her sponsorship position begins. A copy of the payslip and Employment Contract for the equivalent worker was provided.
On 28 March 2022, the Tribunal wrote to the applicant noting that it must be satisfied that the necessary requirements are satisfied at the time of the Tribunal’s decision and invited the applicant to provide updated and current information relevant to whether the criteria for approval of the nomination were met. This included information about its company structure and business registration, information about current approval as a Standard Business sponsor or being party to an approved work agreement, information about directly operating an active and lawful business in Australia and the business’ financial position for at least the last two financial years, information about the business’ organisational structure and where the nominated position sits within the organisational structure of the business, information about the roles and duties of the nominated occupation and how they correspond to the nominated occupation’s position description in ANZSCO, information about the annual market salary rate for the nominated occupation, the nominee’s annual earnings and terms and conditions of employment, information about the current and previous visa status of the nominee and their English language ability and information about the labour marketing testing conditions or whether the application is exempt from those conditions. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide. The requested information has not been provided to the Tribunal.
No response has been received to the Tribunal’s invitation to provide further and update information.
The Tribunal has taken into account the payslips and contract provided however without further evidence, including as requested, the Tribunal is unable to be satisfied that the annual market salary rate for the occupation has been determined by the applicant by reference to instrument IMMI 18/033. Accordingly, the applicant does not satisfy the requirements of reg 2.72(15)(c).
The Tribunal additionally finds that in the absence of current evidence to support verification of the nominee’s guaranteed annual earnings, the Tribunal is not satisfied that the nominee’s annual earnings in relation to the nominated occupation will not be less than the TSMIT threshold specified in IMMI 18/033. Nor is the Tribunal satisfied that there is evidence before it, to demonstrate that the requirements of r.2.72(15)(f) may be disregarded. Therefore, the requirements of r.2.72(15)(f) are not met.
Accordingly, the requirements of r.2.72(15) are not met.
Further, the Tribunal requested updated and current information relevant to the other requirements of r.2.72 that are also required to be satisfied for the nomination to be approved. In the absence of updated and current information as to those requirements, the Tribunal is also unable to be satisfied that the requirements of r.2.72 are met as required.
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.
Susan Trotter
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)…

[2022] AATA 1094

26 April 2022

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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