PHENOMENON CONSTRUCTION PTY LTD (Migration) - [2018] AATA 2918

PHENOMENON CONSTRUCTION PTY LTD (Migration) [2018] AATA 2918 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Phenomenon Construction Pty Ltd
CASE NUMBER:  1612901
DIBP REFERENCE(S):  BCC2016/655216
MEMBER:Alison Mercer
DATE:27 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 27 June 2018 at 4:36pm
CATCHWORDS
Migration – Nomination – Subclass 457 – Genuine position – Wall and Floor Tiler – Issue of self-sponsorship – Indicia of non-genuineness outweighed by genuine need – Labour market testing exemption due to Korea-Australia Free Trade agreement – Decision under review set aside\
LEGISLATION

Fair Work Act 2009
Migration Act 1958, s 140GB, 245AR(1), 359A, 359(2)
Migration Regulations 1994, Schedule 2, rr 1.13A and 1.13B, 2.57A, 2.72, 2.73, cl 457.223

CASES

Qiao v MIAC [2008] FMCA 380
Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732

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 July 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).
The applicant, Phenomenon Construction Pty Ltd, applied for approval on 15 February 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f), which requires that the position associated with the nominated occupation is genuine. The delegate noted that the nominated occupation was Wall and Floor Tiler (Australian and New Zealand Standard Classification of Occupations – ANZSCO code – 333411) and that the applicant’s business involved tiling. However, the delegate was not satisfied that the current size and scope of the business supported the need for an additional Wall and Floor Tiler, or that the nominated position would actually, regularly perform all of the ANZSCO tasks listed for that occupation. The delegate noted the claim by the applicant that its business was expanding, but gave this little weight in the absence of any documentary evidence to substantiate this claim.
The Tribunal received a review application on 16 August 2016. It was signed on behalf of the applicant by one of its directors, Mr Taesu Kim. The review application was accompanied by a copy of the delegate’s decision and an authority by which Mr Kim appointed a registered migration agent, Ms Yeon Jeong Park, as the applicant’s representative and authorised recipient for correspondence.
On 17 July 2017, the Tribunal wrote to Mr Kim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PHENOMENON CONSTRUCTION PTY LTD (Migration) [2018] AATA 2918
Case: [2018] AATA 2918
Decision Date: 27 June 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving Phenomenon Construction Pty Ltd, which sought approval for a nomination for a Subclass 457 visa. The core of the dispute concerned whether the nominated position of Wall and Floor Tiler was genuine, particularly in light of concerns about self-sponsorship, and whether labour market testing was required.

The Tribunal was required to determine if the nominated position was genuine, notwithstanding potential indicia of self-sponsorship, and to ascertain whether the labour market testing requirements under s.140GBA of the Migration Act 1958 (Cth) were applicable in this instance.

The Tribunal found that while there were some indicators that might suggest a lack of genuineness, these were outweighed by evidence of a genuine need for the position. Crucially, the Tribunal determined that the labour market testing requirements were not applicable due to an exemption provided under the Korea-Australia Free Trade Agreement. 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

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Decision

Reasons for decision

Given this finding, the Tribunal finds that the labour market testing requirements in s.140GBA are not applicable.Conclusion For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved. The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Ratio Decidendi

Legal Principle Established

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