OZ STEELFIXING PTY LTD (Migration)

[2017] AATA 1992

OZ STEELFIXING PTY LTD (Migration) [2017] AATA 1992 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  OZ STEELFIXING PTY LTD

CASE NUMBER:  1614651

DIBP REFERENCE(S):  BCC2016/1169500

MEMBER:Saxon Rice

DATE:27 October 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 27 October 2017 at 10:53am

CATCHWORDS

Migration – Approval of nominated positions (employer nomination) – Genuine position – Customer Service Manager – Request for extension of time to provide documents – Insufficient evidence provided

LEGISLATION

Migration Act 1958, ss 140GB, 140GBA, 359(2), 359B(4)

Migration Regulations 1994, r 2.72, r 2.73, r 4.18A(4)

CASES

Yang v MIAC [2010] FMCA 890

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 September 2016 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).

2. The applicant applied for approval on 17 March 2016. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r. 2.72 (10)(f) because the delegate did not consider the position associated with the nominated occupation to be genuine.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

   Tribunal invitation to provide information

7. On 26 September 2017 the Tribunal sent the applicant an invitation under section 359(2) to provide information relating the applicable requirements in regulation 2.72 of the Regulations and section 140GB of the Act.

8. Specifically, the Tribunal advised the applicant that on 18 April 2017 the Prime Minister of Australia and the Minister for Immigration announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a business nomination and a subclass 457 visa application. Importantly, the approval of a business nomination for the nominated occupation of ‘Customer Service Manager’ ANZSCO Code 149212 is now subject to particular exclusions (‘caveats’).

9. In particular, paragraph 2.72(10)(aa) requires where the nomination was made on or after 1 July 2010 the Tribunal to be satisfied that the nominated occupation and its corresponding 6-digit code correspond to an occupation specified by the Minister in an instrument in writing for this paragraph.

10. The relevant instrument currently in place for this purpose is IMMI 17/060 and it provides that for the purposes of paragraph 2.72(10)(aa) the occupation of ‘Customer Service Manager’ ANZSCO Code 149212 cannot be approved if:

    ·The position has a nominated base salary of less than AUD 65,000;

    ·The position is based in a front-line retail setting or it predominately involves direct client transactional interaction on a regular basis;

    ·The position is in a business that has an annual turnover of less than AUD 1 million.

11. The Tribunal also invited the applicant to provide updated and current information to demonstrate that the nomination application meets all the criteria in regulation 2.72 of the Regulations at the time of decision in 2017/18. This letter also stated that the applicant had until 10 October 2017 to provide his comments or response.

12. On 26 September 2017, the applicant’s representative (who is also the nominee for the position) requested an extension of time of three months in order to provide the documents because she is currently in India visiting her ill mother and was not due to return to Australia until 2 December 2017. On 28 September 2017, the Tribunal advised the applicant’s representative as follows:

    In accordance with the requirements of subsection 359B(4) of the Migration Act 1958 the Tribunal may only grant an extension for a prescribed further period. Subregulation 4.18A(4) of the Migration Regulations 1994 provides that the prescribed period starts when the person receives notice of the extended period and ends at the end of 14 days after the day on which the notice is received.

    Accordingly, the Tribunal is unable to grant you an extension of time until you return to Australia in December 2017 as you have requested.

    In addition, please note that the Migration Act 1958 only permits the Tribunal to extend the period of time for a further prescribed period after the initial period, namely, the period of time may only be extended once: Yang v MIAC [2010] FMCA 890.

    Accordingly, the Tribunal grants you an extension until the end of 24 October 2017 to provide the information requested.

13. On 29 September 2017, the applicant’s representative responded to the Tribunal seeking advice regarding her visa status in the event she does not return to Australia by 24 October 2017. On 29 September 2017 the Tribunal advised the applicant’s representative as follows (and included copy to the applicant):

    The Tribunal refers to its earlier correspondence dated 26 September 2017 and your response of the same date requesting an extension of time to provide information. The Tribunal also notes that on 28 September 2017, it advised you that it can grant you an extension of time to provide information until 24 October 2017.

    The Tribunal notes that you are currently in India. However, it is important to understand that the Tribunal has invited the applicant, Oz Steelfixing Pty Ltd, to provide information. It has not (at this stage) invited you or any representative from Oz Steelfixing Pty Ltd to attend, in person, a hearing of the Tribunal.

    You have received the ‘Invitation to provide information’ from the Tribunal because you are the authorised recipient of the applicant (Oz Steelfixing Pty Ltd). As the authorised recipient, we are required to give you, instead of Oz Steelfixing Pty Ltd, any document that we would otherwise have given to Oz Steelfixing Pty Ltd.

    By providing you with these documents, we are taken to have given the documents to Oz Steelfixing Pty Ltd. You should ensure that Oz Steelfixing Pty Ltd is informed of this invitation as soon as possible. Given your overseas status, the Tribunal has also copied Oz Steelfixing Pty Ltd into this email.

    The Tribunal has granted Oz Steelfixing Pty Ltd an extension of time to provide information to 24 October 2017. As outlined in the Tribunal’s correspondence, if we do not receive the information by this time, we may make a decision on the review without taking any further action to obtain the information. Oz Steelfixing Pty Ltd will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.

    The Tribunal notes that you have also lodged a review application with it in relation to the Department’s decision not to grant you a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa. However, this current invitation to provide information relates only to the review application of Oz Steelfixing Pty Ltd and not to your personal review application.

    In relation to your correspondence received by the Tribunal today, the Tribunal cannot provide you with advice regarding your immigration or visa status and all such questions will need to be directed to the Department of Immigration or a registered migration agent. However, the Tribunal reiterates that it has invited Oz Steelfixing Pty Ltd to provide information and it has not (at this stage) requested that you or anyone appear before it in person. If the Tribunal does not receive the information by 24 October 2017, we may make a decision on the review without taking any further action to obtain the information and Oz Steelfixing Pty Ltd will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.

    For your information, I have re-attached the Tribunal's invitation to provide information sent on 26 September 2017.

14. The Tribunal did not receive a response to its invitation to provide information by the extended period of time to 24 October 2017. Accordingly, the Tribunal’s decision is based on the information before it.

    Specified occupation

15. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

16. As outlined above, IMMI 17/060 also provides that for the purposes of paragraph 2.72(10)(aa) the occupation of ‘Customer Service Manager’ ANZSCO Code 149212 cannot be approved if:

    ·The position has a nominated base salary of less than AUD 65,000;

    ·The position is based in a front-line retail setting or it predominately involves direct client transactional interaction on a regular basis;

    ·The position is in a business that has an annual turnover of less than AUD 1 million.

17. The applicant’s nomination application states that the base rate of pay for the position of Customer Service Manager is AUD 54,000 and guaranteed annual earnings of AUD 59,130. In addition, the ‘Employment Offer’ to the nominee dated 1 February 2016 which the applicant provided to the Department states that annual wages for the position is AUD 54,000 plus superannuation. Therefore, the evidence before the Tribunal is that the position of Customer Service Manager at Oz Steelfixing Pty Ltd has a nominated base salary of less than AUD 65,000 and this basis, the occupation cannot be approved.

18. The Tribunal notes that the applicant has provided a ‘Position Description’ and ‘Employment Officer’ for the nominated position and a ‘Genuine Position Statement’ from Mr Robert Piticco, Projects Manager, Oz Steelfixing Pty Ltd. In relation to the role and duties of the position, both the ‘Position Description’ and ‘Employment Officer’ restate the ANZSCO description for the nominated occupation and provide no further information in relation to the context of the position or the company’s operations. In addition, the ‘Genuine Position Statement’ submitted by Mr Piticco also effectively restates the ANZSCO description for the nominated occupation as the duties and responsibilities and provide further information in relation to the purpose, mission, products and services of Oz Steelfixing. However, again, Mr Piticco does not relate the position of Customer Service Manager to the overall operation of the company.

19. The Tribunal also notes that while Mr Piticco states in the ‘Genuine Position Statement’ that Oz Steelfixing Pty Ltd employs up to 35 people, the tasks of a Customer Service Manager as described in ANZSCO appears to be a high level role responsible for the customer service management of organisations large enough to support and require such a function. As such, the Tribunal is not satisfied that the nominated position does not predominately involve direct client transactional interaction on a regular basis.

20. As the applicant has not provided any financial information to the Department or the Tribunal, the applicant has not provided any evidence that the position is in a business with an annual turnover of more than AUD 1 million. In the absence of this information, the occupation cannot be approved.

21. For these reasons the requirements of r.2.72(10)(aa) are not met.

22. 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

23. The Tribunal affirms the decision not to approve the nomination.

    Saxon Rice
    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.

    (8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

    (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 (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or 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.