Roxset Australia Pty Limited (Migration) - [2021] AATA 1676

Roxset Australia Pty Limited (Migration) [2021] AATA 1676 (8 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Roxset Australia Pty Limited
CASE NUMBER:  1815972
HOME AFFAIRS REFERENCE(S):          BCC2017/1870133
MEMBER:Alan McMurran
DATE:8 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 08 April 2021 at 2:50pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Wall and Floor Tiler – genuine position – qualitative analysis of the duties and tasks – ANZSCO position description – tasks of the nominee in the context of the nominator’s business – ‘equivalent or substantially equivalent’ to the tasks associated with the nominated occupation – 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
The nomination application

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 May 2018 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 applied for approval on 13 November 2017. 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 applicant
The applicant carries on business Australia-wide providing refurbishment and renovation services for wall and floor finishes in (for the most part) existing buildings.
Some of the buildings are quite old and require significant work and can vary from small local residences including swimming pool coatings, laundries and the like to large commercial operations, where the buildings are predominantly those involved in food production and storage, including large commercial kitchens.
They also include abattoirs and premises operated by well-known enterprises involved in the food industry such as Steggles Chickens, Nestlé, Cargill Australia, and Bega, all of which utilise premises requiring clean and serviceable surfaces (floors and walls).
The applicant repairs, replaces and treats old tiled surfaces, walls and flooring with a combination of tiling repairs and replacement, and utilising its own unique Epoxy resin, specially developed for the purpose and which is used to resurface those areas so as to render them easy to clean, serviceable and waterproof.
The nominee
The nominated occupation was for a Wall and Floor Tiler (ANZSCO 333411). The nominee, Alexandru Iacob is a 36 -year-old Romanian citizen (“the nominee”). The nominee has applied for the related Subclass 457 visa and review of the refusal of the visa for want of an approved nomination

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.

Continue reading Roxset Australia Pty Limited (Migration)

Details

AGLC: Roxset Australia Pty Limited (Migration) [2021] AATA 1676
Case: [2021] AATA 1676
Decision Date: 8 April 2021

CaseChat Overview and Summary

This matter concerned an application by Roxset Australia Pty Limited for approval of a nominated position for a Subclass 457 visa. The applicant sought to nominate Alexandru Iacob as a Wall and Floor Tiler. The Administrative Appeals Tribunal was required to determine whether the nominated position met the criteria for approval under the Migration Regulations 1994.

The Tribunal was tasked with assessing whether the nominated occupation, Wall and Floor Tiler, corresponded to a specified occupation and its ANZSCO code as per instrument IMMI17/060. It also needed to consider whether the terms and conditions of employment for the nominee would be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work at the same location. Furthermore, the Tribunal had to be satisfied that the applicant had complied with the prescribed nomination process, including providing necessary certifications and that there was no adverse information known to Immigration about the applicant or associated persons.

The Tribunal's reasoning focused on a qualitative analysis of the duties and tasks of the nominee in the context of Roxset Australia's business, comparing them against the ANZSCO position description for a Wall and Floor Tiler. It found that the nominated occupation and its ANZSCO code were specified in the relevant instrument and that the nominee's duties were equivalent or substantially equivalent to those of the nominated occupation. The Tribunal was also satisfied that the applicant had met the procedural requirements, including the certification regarding contravention of s.245AR(1) of the Act, and that no adverse information was known.

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

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 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 sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met. The Tribunal has available for consideration electronic extracts from the Department’s files for both the applicant and the nominee, together with the Tribunal’s files for each review. In addition, the Tribunal has the recent submissions made in response to the Tribunal’s request and the oral evidence provided at the hearing. The Tribunal also has regard to the Act and the Regulations and departmental Policy.[3][3] PAM 3 The Tribunal has referred below in these reasons to the relevant evidence necessary for the review, and for the sake of efficiency, not necessarily every document produced, and submissions made are referenced.The nomination must comply with the prescribed process Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73. On the basis of the available information and the Department records, the Tribunal finds that the applicant is nominating an occupation (Wall and Floor Tiler) (the occupation) under s.140GB(1)(b): r.2.73(1A)(a).[4][4] S 140 GB(2) provides an approved sponsor may nominate a proposed occupation, program or activity. R.2.73 (1A) (a) refers to sub regulations (1)-(6) and (9) which set out the process for the nomination, which must be made using the Internet and on the approved form. The Tribunal further finds that the applicant has identified in the nomination a proposed applicant (the nominee) for a Subclass 457 visa, and as the person who will work in the occupation. The application was made as required under s.140GB(1)(b) using the approved form and by payment of the required fee. The Tribunal is satisfied the applicant has identified the nominee in the nomination as Alexandru Iacob. The applicant has included the certification that the applicant has not engaged in a contravention of s.245AR(1) of the Act: r.2.73(4B), and which relates to obtaining a benefit in return for the occurrence of a sponsorship-related event. The nomination includes the location of the applicant’s business at Pymble, in Sydney, which is the applicant’s head office. The applicant also operates warehouse premises on the Central Coast of New South Wales, which is used to house equipment including motor vehicles, tools and relevant materials. The nominee attends where directed to work on sites as required by the nominator. Those sites may be located around Australia, depending upon the customer’s location.

Decision

Reasons for decision

For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.DECISION The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.Alan McMurranMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19942.72 Criteria for approval of nomination — Subclass 457…(1)This regulation applies to a person who is:(a)is any of the following:(i) a standard business sponsor;(ii) a person who has applied to be a standard business sponsor;(iii) a party to a work agreement (other than a Minister);(iv) a party to negotiations to a work agreement (other than a Minister); and(b)a party to a work agreement (other than a Minister);who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.(4)The Minister is satisfied that the person is:(a)a standard business sponsor; or(b)a party to a work agreement (other than a Minister).(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.(7)For paragraph (6) (a), the Minister may disregard the fact that 1 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.(7A)In addition to subregulation (6):(a)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and(b)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the person has listed on the nomination a person described in paragraph (6) (a); and(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;(b)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and (ii) the person is a standard business sponsor;the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);(c)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and(ii) the person is a party to a work agreement;the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;(9)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.(10)If the person is a standard business sponsor — the Minister is satisfied that:(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ASCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (a); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ASCO; or(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ANZSCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ANZSCO; or(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).(f)the position associated with the nominated occupation is genuine; and(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;(ii) if:(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; (iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;(iv) unless subparagraph (ii) applies—the holder:(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and(h)either:(i) the person will:(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and(B)give a copy of that contract to the Minister; or(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:(a)the terms and conditions of employment; and(b)the base rate of pay, under the terms and conditions of employment;that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and(c)the Minister considers it reasonable to do so.(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

Ratio Decidendi

Legal Principle Established

For these reasons the requirements of r.2.72(8B) are met.No adverse information known to Immigration Regulation 2.72(9) 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 rr.1.13A and 1.13B. On the available information, and following questions put to the Director at the hearing, the Tribunal is satisfied there is no adverse information known to Immigration about the applicant or a person associated with the applicant. For these reasons the requirements of r.2.72(9) are met.Specified occupationr.2.72(10)(aa) Regulation 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b). The Tribunal finds on the information available that the nominated occupation, Wall and Floor Tiler, and its 6-digit code ANZSCO 333411, correspond to an occupation and 6-digit code specified in the relevant instrument, IMMI 17/060. For these reasons the requirements of r.2.72(10)(aa) are met.r. 2.72(10)(b) The specified occupation is not subject to any applicability conditions, nor required to be supported by a specified organisation. For these reasons the requirements of r.2.72(10)(b) are not applicable.Terms and conditions of employment Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009. A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer.