RENOVISION HOLDINGS PTY LTD (Migration)

[2024] AATA 346

RENOVISION HOLDINGS PTY LTD (Migration) [2024] AATA 346 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Renovision Holdings Pty Ltd

REPRESENTATIVE:  Mr Fabio Nocilla (MARN: 1801443)

CASE NUMBER:  2113100

HOME AFFAIRS REFERENCE(S):          BCC2020/2378365

MEMBER:Wan Shum

DATE:3 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 03 January 2024 at 11:42am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Bricklayer – labour market testing – no response to s.359 invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363A

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Hasran v MIAC [2010] FCAFC 40

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 6 September 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).

2. The applicant applied for approval on 28 September 2020 and nominated the occupation of Bricklayer. 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. Additional criteria are specified in s 140GBA which set out the labour market testing conditions that apply.

3. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.

4. The delegate decided not to approve the nomination on the basis that the labour market testing conditions were not met which meant that s 140GBA was not satisfied.

5. On 16 October 2023, the applicant was invited pursuant to s 359 of the Act to provide updated and current information that the applicant met the requirements of reg 2.72 and s 140GB of the Act at the time of its decision.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 30 October 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement the applicant might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. As the information was not provided within the prescribed period and no extension has been granted, s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. In this case, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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). In addition, the labour market testing requirements in s 140GBA must be met.

10. In this case, the evidence reflects that the labour market testing requirements in s 140GBA were not met.

11. Given this, 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

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

    Wan Shum
    Member