SEKHON BROS PTY LTD (Migration)

SEKHON BROS PTY LTD (Migration) [2020] AATA 182 (29 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SEKHON BROS PTY LTD
CASE NUMBER:  1717946
HOME AFFAIRS REFERENCE(S):           BCC2016/3679420
MEMBER:Mr S Norman
DATE:29 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 29 January 2020 at 12:03pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – nominee the sister-in-law of director of nominator – position not advertised publicly and no attempt to recruit Australian citizen or permanent resident – position created principally to facilitate migration outcome – no response to tribunal’s s 359(2) letter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 2.72(10)(f), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40

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 and Border Protection on 28 July 2017 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 Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 4 November 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) – Position must be genuine. The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The nomination approval application was lodged by the nominator/applicant (SEKHON BROS PTY LTD), on 4 November 2016. The nominated occupation was for a Cafe or Restaurant Manager (ANZSCO: 141111); and the nominee/visa applicant was Mr Gurpreet KAUR.
With the nomination application was lodged:
·     Organisation Chart for the nominator – listing three business; (1) Couriers (1xFT & 16x subcontractors; (2) Salam Namaste Restaurant (3xFT – including the nominee – & 3 x PT); (3) Desi Hut Restaurant (2xFT & 3xPT)[1]
[1] Department – folio 96.
·     Contract for sale of business – Desi Hut[2]
[2] Department –folio 25.
·     Evidence of vehicle registrations[3]
[3] Department – from folio 23.
·     PAYG summary for year ending 30 June 2013[4]
[4] Department – folio 92.
·     PAYG summary for year ending 30 June 2014[5]
·     PAYG summary for year ending 30 June 2016[6] - gross payments of $54,000
·     Notice of Assessment – year ended 30 June 2015[7]
·     DESI HUT salary payments to the visa applicant[8] - for pay period ending 3/10/2016
·     Bank Account statement for the nominee[9]
·     Income Statement for year ended 30 June 2016:
·Profit (Loss) From Ordinary Activities Before Tax to 30 June 2015 ($3,315); and to 30 June 2016, $12,798.[10]
·Net loss Attributable to Members of the Entity – for year ending 30 June 2015 – ($3,315); and for year ending 30 June 2016 - $6,638[11]
·     Photographs of the business[12]
[5] Department – folio 91.
[6] Department – folio 88.
[7] Department – folio 90.
[8] Department – from folio 87.
[9] Department – from folio 76.
[10] Department – folio 59.
[11] Department – folio 58.
[12] Department – from folio 48.
By the applicant’s statement dated 31/012017,[13] it was said the applicant’s business was growing which was said to be evidenced by the “P&L” provided. It was said this growth demands more manpower and due to the Director’s (Mr Pushpinder Pal Singh’s) involvement in the Courier business, he was unable to devote sufficient time to the hospitality business. It was then said the nominee/visa applicant is the sister-in-law of the Director, however the nominated position was not created to facilitate the entry of, or residence in, Australia for the visa applicant. It was explained the visa applicant did not hold any Directorial responsibility and was not a shareholder of the business. It was said the visa applicant had never worked for the business before but that she “carried a rich experience of more than four years working full-time as a Restaurant Manager with her previous employer”. It was then said the nominated position of Restaurant Manager is extremely demanding and high pressured and the business did not “want to be less able to be weeded out because of shortage or inexperienced staff”.
[13] Department – from folio 62.
In the Department delegate’s decision, it was said that based on the evidence before them, the nominee (Gurpreet KAUR) appeared to be related to the Director of the nominator. For instance, a marriage certificate dated 2010, listed the business addresses and home address of the applicant. Further, the Director was a witness to the marriage.
The delegate continued that the purpose of the Subclass 457 Visa program is to enable Australian businesses to temporally fill short-term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The Subclass 457 program was not intended to be used for noncitizens to be sponsored to Australia due to their family relationship with an Australian sponsor. After then considering all the evidence, the delegate was satisfied the position associated with the nominated occupation existed solely to facilitate the stay of the nominee in Australia, rather than to fill a genuine vacancy or skill shortage.
The delegate was not satisfied that material evidence had been lodged which demonstrated the nominated position was advertised to the public, or that any attempts were made to recruit Australian citizens. Also, the visa applicant/nominee had made a substantial amount of onshore visa applications which also demonstrated the nominee’s ongoing attempts to secure a migration outcome. This was considered to be further evidence that the nominated occupation was created (principally if not solely) to facilitate a migration outcome for the nominee. Consequently, the delegate was not satisfied the applicant met r.2.72(10(f); or r.2.72(10). The delegate then refused the nomination approval application lodged by SEKHON BROS PTY LTD.
By s.359(2) letter dated 8 January 2020 (dispatched by email to the authorised recipient), the Tribunal advised that in order to consider whether to approve the business nomination application lodged by the applicant, it must be satisfied that the requirements in r.2.72 of the Migration Regulations 1994 (the Regulations) and s.140GB of the Act are met at the time of its decision, including but not limited to the particular criteria the delegate found was no met. The Tribunal required updated and current information addressing these criteria. The response was requested to be in writing and lodged with the Tribunal by 22 January 2020.
The applicant did not respond to the Tribunal within the prescribed period and they did not request an extension of time within which to respond. In these circumstances, s.359C applies and pursuant to s.360(3) the review 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 a decision without taking steps to obtain further information or comment/s from the applicant. That is because no response was received to the Tribunal’s s.359(2) letter, and no (more recent) material evidence was otherwise lodged with the Tribunal, and the applicant had been made aware of the deficiencies in the application at the time of the delegate’s decision.
Also, the Tribunal had considered whether, in the circumstances of this case, the information or evidence that the applicant meets the requirements in r. 2.72(10)(f) is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal has also had regard to the fact that the application was refused by the Department on 28 July 2017 (almost 30 months prior to the Tribunal decision).
In these circumstances, and based on all the evidence set out herein, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements in r. 2.72(10)(f). The Tribunal has decided not to delay its decision any further.
That being said, after considering the evidence in this case, the Tribunal is not satisfied there is a genuine need for the nominee to be employed in the applicant’s business. The Tribunal is therefore not satisfied the applicant met r.2.72(10)(f); or r.2.72(10).
For the reasons given above, the Tribunal is not satisfied the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Mr S Norman
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 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.

[2020] AATA 182

29 January 2020

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction