Panthera Finance Pty Ltd (Migration)

[2023] AATA 3895

Panthera Finance Pty Ltd (Migration) [2023] AATA 3895 (18 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Panthera Finance Pty Ltd

REPRESENTATIVE:  Miss Dalila Machado Medeiros Allen (MARN: 2014135)

CASE NUMBER:  1920045

HOME AFFAIRS REFERENCE(S):          BCC2019/3119853

MEMBER:Angela Julian-Armitage

DATE:18 July 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 18 July 2023 at 9:52am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Customer Service Manager – genuine position – position existed well before the nominee was appointed – amount of time the nominee has held the position – increasing salary and benefit levels – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 4 July 2019 to refuse to approve the applicant’s nomination pursuant to s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. On 20 June 2019, the applicant lodged a nomination application for an occupation for a Subclass 482 visa pursuant to s140GB 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 grant an approval. These criteria are extracted in the attachment to this decision. Additional criteria in specified in s140GBA. In the present case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.

3. The delegate refused to approve the nomination on the basis that the applicant did not satisfy 2.72(10)(a) on the basis of that the delegate was not satisfied that the position associated with the occupation is genuine.

4. The applicant appeared before the Tribunal on 2 May 2023 to give evidence and present arguments and was represented at the hearing.

5. 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

6. The pivotal issue in the present case is whether the nomination meets the criteria for approval of the nomination which must be approved if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s140GB(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 contained in s140GBA must also be met.

   The nomination must comply with the prescribed process

7. Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.

8. The Tribunal has been furnished written and oral material to evidence that the application was made in accordance with the requirements in reg 2.73 in that:-

   · The applicant nominated an occupation under s140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or a proposed applicant for a Subclass 482 visa: reg 2.73(1);

   ·     The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);

   ·     The nomination was accompanied by the applicable training contribution charge: reg 2.73(5A);

   ·     The nomination is for a “Customer Service Manager” which is a specified skilled occupation in the Short-term stream specified in the relevant Register of Instruments: Business Visas: reg 2.73(6);

   ·     The applicant has identified Ms Kelly Jane Lightfoot as the nominee in the nomination application: reg 2.73(8);

   ·     The nomination includes the name of the occupation and its corresponding 6 digit code as ANZSCO 149212 to be carried out as 555 Coronation Drive Toowong, Queensland. The application also includes the proposed period of stay for a visa granted based on the nomination, the annual turnover for the nomination, and any other specified information in Migration (LIN 19/048: Specification of Occupations-Subclass 482 Visa) Instrument: reg 2.73(9);

   ·     The nomination application itself contains written certification that the nominator has not engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);

   ·     The nomination includes the employment contract duly executed by both the nominator explicitly provides for compliance with Commonwealth and State: reg 2.73(13);

   ·     The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO 149212 and that the nominee has the qualifications and experience commensurate with those specified for the occupation in ANZSCO 149212. Furthermore, the Tribunal is satisfied that the position is in the applicant’s business: reg 2.73(14).

9. For these reasons, the requirements of reg 2.72(3) are met.

   No adverse information known to Immigration

10. 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.

11. There is no adverse evidence either before this Tribunal to show that Immigration has any such information. Hence, requirement in reg 2.72(4) is met.

    Nominator is a standard business sponsor

12. Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.

13. The Tribunal has sighted a copy of the Standard business Sponsorship approval granted on 1 March 2019 and valid till 1 March 2024. Therefore, the requirement in reg 2.72(5) is met.

    Payment of debt mentioned in s 140ZO

14. Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act.

15. There is nothing before this Tribunal to indicate that this section is of any relevance in this case.

16. Therefore, reg 2.72(5A) is met.

    Requirements for existing Subclass 457 or Subclass 482 visa holders

17. 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).

18. As the nominee is the holder of a Bridging visa and not a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.

19. The nomination also includes the visa applicant’s minor child is also included in the visa application as a secondary applicant.

20. For these reasons the requirements of reg 2.72(6) are.

21. The nominee is the holder of a British passport and as such is exempt from any requirement to undertake a language test.

22. For that reason, the requirements of reg 2.72(14) are met.

    Specified occupation

23. 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. As mentioned above, the occupation and the ANZSCO 6-digit code correspond to the occupation in the relevant instrument and apply to the nominee.

24. For these reasons, the requirements of reg 2.72(8) are met.

    Position must be genuine and full-time

25. 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.

26. The oral evidence from the nominator’s representative at the hearing of this matter was that the position existed well before the nominee was appointed. The nominator is a mercantile company and that relies heavily on its Customer Service personnel as it deals, primarily, with debtors of the business who are experiencing difficult financial circumstance that require tact and empathy in order to be able to reach repayment agreements.

27. The sheer amount of time the nominee has held the position on a full-time basis leads this Tribunal to find that the position is genuine. This is particularly evident as the position was only initially for a period of 2 years and the visa applicant has now held it for in excess of 5 years with ever increasing salary and benefit levels.

28. For these reasons, the requirements of reg 2.72(10) are met.

    Employment under contract

29. Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister.

30. The evidence before this Tribunal is that the nominee is employed pursuant to an employment contract which provides for terms and conditions in accordance with the relevant Commonwealth and State law in relation to employment including the National Employment Standards. In addition to the original employment contract, the Tribunal has also been furnished with a “Confirmation of Employment Changes” document which provides for increases in salary and conditions.

31. For these reasons, the requirements of reg 2.72(11) are met.

    Annual earnings

32. Regulation 2.72(15) provides several requirements which must be met in order to determine the nominee’s annual earnings in relation to the nominated occupation so that the nominee’s earnings will not be less than the amount specified in the current Temporary Skills Migration Income Threshold (“TSMIT”) specified by s6 of the Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rates) Instrument 2018. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to the relevant instrument: reg 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: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the relevant instrument: reg 2.72(15)(d);

    ·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 reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa);

    ·the nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 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: reg 2.72(15)(f) and reg 2.72(16)(b); and

    ·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: reg 2.72(15)(g).

33. As the annual earnings in relation to the occupation will be at least the specified amount, the requirements of reg 2.72(15) do not apply.

34. The Tribunal is satisfied that the annual salary for the nominated position, excluding non-financial benefits, is $85,000 per annum which clearly is greater than the current TSMIT. Furthermore, the Tribunal is satisfied that the annual earnings of the position are consistent with the Annual Market Salary Rates which were used to determine the salary for the position.

35. For these reasons, the requirements of reg 2.72(15)(c), regs 2.72(15)(d), 2.72(15)(e) and 2.72(15)(f) are met.

    Employment conditions

36. Regulation 2.72(18)(a) requires that 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 permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.

37. If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In the case of this applicant, it is lawfully operating a business in Australia and reg 2.72(18)(b) applies.

38. The Tribunal is satisfied that there is no information known to Immigration that indicates a breach of reg 2.72(18)(a) or reg 2.72(18)(b).

    Labour Market Testing

39. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss140GBB-140GBC apply, or it would be inconsistent with any international trade obligation of Australia determined by the Minister under s140GBA(2).

40. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in the relevant instrument. In addition, and relevantly:

    ·the nomination must be accompanied by the evidence specified in the instrument made pursuant to s140GBA(6A) relating to labour market testing;

    ·the labour market testing must have been undertaken in the manner determined under s140GBA(5);

    ·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

41. The application for the nomination was made on 20 June 2019. Hence, pursuant to s140GBA of the Act, the manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are stipulated in the Migration (LIN 18/036: period, manner and evidence of labour market testing) Instrument 2018.  

42. The Tribunal is satisfied, on the evidence, that the labour market testing has been undertaken for the specified period and in the manner required by the instrument. Evidence of which accompanied the application: ss 140GBA(3)(a) and (4); ss140GBA(3)(aa) and (5); s140GBA(3)(d). Furthermore, the Tribunal is satisfied that the applicant was not able to engage the services of a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder to fill the position.

43. The visa applicant who was engaged by the applicant had more than 20 years’ experience in the area and demonstrated skills that not only met the requirements of the occupation but the needs of the nominator.

44. For these reasons, the labour market testing requirements in s 140GBA are met.

    Nomination training contribution charge

45. Section 140ZM imposes a liability on a person or entity to pay a nomination training contribution charge where the nomination is of a prescribed kind. Regulation 5.42 prescribes a nomination of a proposed occupation under s 140GB(1)(b) in relation to a Subclass 457 or Subclass 482 visa holder or an applicant or proposed applicant for a Subclass 482 visa. The nomination training contribution charge is a charge imposed by s 7 of the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), and the amount of the charge is prescribed by the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth). Liability to pay the charge arises for nominations made on or after 12 August 2018. If the applicant is liable to pay the charge, it must have been paid: s140GB(2)(aa). This application was made after 12 August 2018, hence, the charge was made with the nomination.

46. For that reasons the requirement in s140GB(2)(aa) is met.

47. For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.

    DECISION

48. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

    Angela Julian-Armitage
    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)…