Resource 2 Source Pty Ltd (Migration) [2024] AATA 343 (18 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Resource 2 Source Pty Ltd
(Procurement Co Pty Ltd – ACN 167025452)
REPRESENTATIVE: Mr Ton Chau
CASE NUMBER: 2103158
HOME AFFAIRS REFERENCE(S): BCC2020/1124555
MEMBER:K. Chapman
DATE:18 January 2024
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 January 2024 at 5:46pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Contract Administrator – genuine position – additional information submitted – nominee’s duties – consistent with the size and scope of the applicant’s business – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBAMigration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30STATEMENT 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 23 February 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, originally named Resource 2 Source Pty Ltd and now named Procurement Co Pty Ltd (ACN 167025452), applied for approval on 12 March 2020. The applicant nominated Ms Gabriela Soledad Contreras Acevedo (‘the nominee’) in the occupation of Contract Administrator, which is coded number 511111 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant provides consultancy services with procurement, transaction management, contract management and probity offerings. Its clients include both private and public sector entities.
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 matter, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination, due to a lack of satisfaction that the position associated with the nominated occupation is genuine. On 12 March 2021, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.
On 8 September 2023, the Tribunal wrote to the applicant, pursuant to subsection 359(2) of the Act, inviting them to provide current information addressing the relevant criteria under reg 2.72 of the Regulations and s 140GB of the Act. In response, the applicant submitted material including, but not limited to,…
Continue reading Resource 2 Source Pty Ltd (Migration)
Sign in free to access the full text
- AGLC
- Resource 2 Source Pty Ltd (Migration) [2024] AATA 343
- Case
- [2024] AATA 343
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the applicant met the criteria for approval of the nomination under the Migration Regulations 1994, specifically focusing on whether the nomination was made in accordance with the prescribed process, whether there was any adverse information known to Immigration, whether the nominator was a standard business sponsor, and whether the nominated occupation was specified in the relevant legislative instrument and applicable to the nominee.
The Tribunal found that the applicant had lodged the nomination on the approved form, identified a Brisbane location, paid the prescribed fee and training contribution charge, and included the necessary certifications. It was satisfied that the applicant was a standard business sponsor and that the nominated occupation, Contract Administrator (ANZSCO 511111), was an approved occupation for the Subclass 482 visa in the Short-term stream, and that this occupation was applicable to the nominee. The Tribunal also noted the absence of adverse information and that the nominee was not a holder of a Subclass 457 or 482 visa, thus rendering certain regulatory requirements inapplicable.
Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For these reasons, the requirements of reg 2.72(3) are satisfied. No adverse information known to Immigration 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. There is no evidence of adverse information before the Tribunal about the applicant or a person associated with the applicant. For these reasons, the requirements of reg 2.72(4) are met. Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The applicant submitted a copy of their Sponsorship Approval Notice confirming they are an approved standard business sponsor for the period 11 February 2020 to 11 February 2025. For these reasons the requirements of reg 2.72(5) are met. Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no evidence before the Tribunal of any debt relevant to s 140ZO of the Act. For these reasons the requirements of reg 2.72(5A) are satisfied. Requirements for existing Subclass 457 or Subclass 482 visa holders 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); and·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). As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6) and reg 2.72(14) do not apply.Specified occupation 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, that is LIN 19/048. The occupation must also be applicable to the nominee in accordance with this instrument. The applicant nominated the occupation of Contract Administrator (ANZSCO 511111). This occupation is not subject to an inapplicability condition (or ‘caveat’). Following careful consideration of the evidence, the Tribunal is satisfied that the nominated occupation is duly listed in instrument LIN 19/048 and is applicable to the nominee, who is actually employed as a Contract Administrator (ANZSCO 511111) by the applicant.