Red Earth Energy Storage Pty Ltd (Migration) - [2024] AATA 2436

Red Earth Energy Storage Pty Ltd (Migration) [2024] AATA 2436 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Red Earth Energy Storage Pty Ltd
REPRESENTATIVE:  Mr Rex Howard (MARN: 9251016)
CASE NUMBER:  2108135
HOME AFFAIRS REFERENCE(S):          BCC2020/1420938
MEMBER:George Hallwood
DATE:27 June 2024
PLACE OF DECISION:  Adelaide
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 2024 at 4:31pm

CATCHWORDS
MIGRATION – nomination – Short-term – Technical Sales Representative – a standard business sponsor – the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument – no adverse information – position associated with the nominated occupation is genuine – no less favourable terms and condition of employment – nomination training contribution was paid by the applicant – decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140, 245AR
Migration Regulations 1994, rr 1.13, 2.57, 2.72

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

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 3 June 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 23 April 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(8) because they found the position associated with the nominated occupation of Technical Sales Representative nec - 225499 is based in a call centre and does not require a significant technical knowledge of products. They were satisfied that the position was subject to the applicability exception specified in the relevant legislative instrument (IMMI 19/048).
Mr Charles Walker, CEO/MD appeared before the Tribunal on behalf of the applicant, Red Earth Energy Storage Pty Ltd (Red Earth) on 28 March 2024 to give evidence and present arguments. This was a combined hearing with that of the related visa applicant, Mr David Patrick Nolan - case number 2113937, who also gave evidence.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision…

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

Case: [2024] AATA 2436
Decision Date: 27 June 2024

CaseChat Overview and Summary

Red Earth Energy Storage Pty Ltd sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the nomination of a Technical Sales Representative for a skilled migration visa. The applicant, Red Earth Energy Storage Pty Ltd, was a standard business sponsor.

The primary legal issue before the Federal Court was whether the nominated occupation, Technical Sales Representative, and its associated six-digit code corresponded to an occupation and code specified in the relevant legislative instrument. Further issues included whether there was any adverse information against the sponsor, whether the position associated with the nominated occupation was genuine, and whether the terms and conditions of employment offered were no less favourable than those provided to Australian employees. The court also considered whether the nomination training contribution had been paid by the applicant.

The Court found that the nominated occupation and its six-digit code did indeed correspond to an occupation and code specified in the relevant instrument. It was also satisfied that there was no adverse information against the sponsor, that the position was genuine, and that the terms and conditions of employment were not less favourable. Furthermore, the nomination training contribution had been paid. Consequently, the Court set aside the decision under review.

Orders