SHINE MOTOR CORPORATION PTY LTD (Migration) - [2023] AATA 2853

SHINE MOTOR CORPORATION PTY LTD (Migration) [2023] AATA 2853 (28 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SHINE MOTOR CORPORATION PTY LTD
REPRESENTATIVE:  Mr Eddy Erny (MARN: 0323211)
CASE NUMBER:  1931279
HOME AFFAIRS REFERENCE(S):          BCC2019/4896646
MEMBER:Alan McMurran
DATE:28 July 2023
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 28 July 2023 at 4:48pm

CATCHWORDS
MIGRATION–nomination – Medium-term stream – Corporate General Manager – no adverse information– applicant is the standard business sponsor – position associated with the nominated occupation is genuine and full time – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 4 November 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2019 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, SHINE MOTOR CORPORATION PTY LTD, applied for approval on 30 September 2019. 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 for up to 4 years in the Medium-term stream. The nominated occupation is Corporate General Manager (ANZSCO 111211), and the nominee is Mr Mohd Taqi DAD Ali. The nominee has made a related application for the Subclass 482 TSS visa, which is also under review in the Tribunal.[1]
[1] Tribunal case 1933826
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy cl 2.72(10)(a) of the Regulations because the position was not what it purported to be and therefore the nominated occupation was not ‘genuine’.
On 27 July 2023, the applicant appeared in a combined hearing with the Tribunal’s review of the nominee’s visa decision. The hearing was scheduled for two hours. A director of the applicant, the nominee, and the director’s two sons were present to give evidence and present arguments.
On the morning of the hearing, when contacted at the scheduled time, the applicant and witnesses asked the Tribunal to conduct the hearing by telephone as they had been unable to connect using the available video link. They did not…

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.

Keep reading for free

Create a free CaseChat account to read SHINE MOTOR CORPORATION PTY LTD (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 2853
Decision Date: 28 July 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a nomination for a Subclass 482 visa. The applicant, Shine Motor Corporation Pty Ltd, sought to nominate Mr. Ali for the occupation of Corporate General Manager. The delegate of the Department of Home Affairs had refused to approve the nomination, and the applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant, Shine Motor Corporation Pty Ltd, met all the criteria prescribed by the Migration Regulations 1994 for the approval of a nomination for a Subclass 482 visa in the Medium-term stream. Specifically, the Tribunal had to consider whether the nominated position was genuine and full-time, and whether the applicant had complied with all procedural and substantive requirements of the regulations, including the absence of adverse information and the status of the nominator as a standard business sponsor.

The Tribunal's reasoning focused on assessing the evidence presented, particularly the oral evidence given at the hearing, which was not available to the original delegate. The Tribunal found that the applicant was a standard business sponsor and had met its obligations regarding the payment of any debts. Crucially, the Tribunal was satisfied, based on the evidence including oral testimony, that the nominated position of Corporate General Manager was genuine and full-time, and that no adverse information was known to Immigration concerning the applicant or associated persons. The Tribunal also confirmed that the nominated occupation, Corporate General Manager (ANZSCO 111211), was specified in the relevant legislative instrument.

Consequently, the Tribunal set aside the delegate's 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

The Tribunal has placed significant weight on the oral evidence obtained from the hearing and which was not available to the Department delegate.Background The applicant is a small to medium business engaged in the acquisition and sale of used motor vehicle parts and in metal recycling. The Shine Group itself is part of a worldwide network of motor vehicle spare parts providers who source and sell parts for wholesale distribution. The applicant’s clients are primarily located overseas and the applicant operates the business under a current Commonwealth export licence. The applicant has a current turnover on its latest (2022) FYE ATO statement in excess of AUD26,000,000.00. The applicant employs currently 10 staff including the nominee. The business operates from premises at Ingleburn in outer Western Sydney. The nominator relies for this application upon recent submissions concerning the position associated with the nominated occupation as to whether it is genuine and full-time, and the oral evidence from the directors at the hearing, and the submissions concerning the work performed by the nominee and the tasks involved. The nominee, Mr Ali, was appointed as a director of the applicant (also referred to as “the company”) from inception in January 2014. Mr Ali is a citizen of the Islamic Emirate of Afghanistan and is currently on a Bridging visa, as is his family, while they await the visa outcome. The other director, Mr Wali, is an Australian citizen. Mr Wali gave evidence that he is not engaged on a daily basis in the company’s business, which is run almost entirely by Mr Ali. Mr Ali gave evidence referred to below about his role and how the business operates. Mr Ali’s two sons who were present for the hearing gave short evidence. Leyaqat Taqi said he confirmed what his father had said and could offer nothing further. He said he is on a student visa which occupies most of his time but works some time in the business as an assistant manager to help his father. Abdul Taqi chose not to offer any evidence himself, saying he is currently in Brisbane working on a skilled occupation visa. He is not involved in the company. Evidence concerning all the criteria to be satisfied under r 2.72 is set out below under the various criteria headings. The Tribunal has dealt with each criterion separately as follows.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 reg 2.73. On the available information, the Tribunal is satisfied the applicant is nominating an occupation and the corresponding 6 digit code under s 140GB(1)(b) and has identified the nominee as the proposed applicant for a Subclass 482 visa under reg 2.73(1) in the Medium-term stream[4]. The nominee is nominated to work in the nominated occupation. [4] LIN19/048 commenced 11 March 2019; for nominated occupations on 11 March 2019, this includes Corporate General Manager (ANZSCO 111211), and which is subject to an inapplicability caveat.

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 decision in relation to the visa application is the subject of a separate decision in Tribunal case number 1933826. The particular issue which troubled the delegate was cl 2.72(10)(a) of the Regulations. The intention of this provision is to ensure that positions so nominated are in skilled occupations that are genuinely needed and so described by the nominating employer.[3][3] Explanatory Statement to SLI 2013, No 146, Attachment B, p.34. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets all the requirements in reg 2.72: s 140GB(2). If any one requirement is not met, then the reviewer does not need to consider any remaining requirements. The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met. The Tribunal has available information including extracts from the Department’s nomination and visa application files, the related Tribunal files, including recent submissions from the representative, and oral evidence from the hearing as referred to below. This includes material which was not before the Department. The Tribunal has also had regard to the Act and the Regulations, relevant case law, the ANZSCO guide for the occupation, relevant legislative instruments, Department policy and the AAT’s publicly available Practice Directions, guides and guidelines. A large amount of information has been submitted by the applicant including in response to Tribunal requests and invitations to respond. On completion of the hearing, no further information was requested or sought to be provided. The Tribunal has placed significant weight on the oral evidence obtained from the hearing and which was not available to the Department delegate.Background The applicant is a small to medium business engaged in the acquisition and sale of used motor vehicle parts and in metal recycling. The Shine Group itself is part of a worldwide network of motor vehicle spare parts providers who source and sell parts for wholesale distribution. The applicant’s clients are primarily located overseas and the applicant operates the business under a current Commonwealth export licence. The applicant has a current turnover on its latest (2022) FYE ATO statement in excess of AUD26,000,000.00. The applicant employs currently 10 staff including the nominee. The business operates from premises at Ingleburn in outer Western Sydney. The nominator relies for this application upon recent submissions concerning the position associated with the nominated occupation as to whether it is genuine and full-time, and the oral evidence from the directors at the hearing, and the submissions concerning the work performed by the nominee and the tasks involved.

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 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa(1)This regulation applies in relation to a person who:(a)is any of the following:(i) a standard business sponsor;(ii) a person who has applied to be a standard business sponsor;(iii) …(iv) …(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.(4)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.(5)The Minister is satisfied that:(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or(b)…(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.(6)If the nominee holds:(a)a Subclass 457 (Temporary Work (Skilled)) visa; or(b)a Subclass 482 (Temporary Skill Shortage) visa;the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.(7)However, the Minister may disregard the fact that one 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.(8)The Minister is satisfied that:(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or(ii) …; and(b)the occupation applies to the nominee in accordance with the instrument or work agreement.(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:(a)whether the occupation is:(i) a short term skilled occupation; or(ii) a medium and long term strategic skills occupation; and(b)either:(i) the 6-digit ANZSCO code for the occupation; or(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:(i) the person who nominated the occupation;(ii) the nominee;(iii) the occupation;(iv) the position in which the nominee is to work;(v) the circumstances in which the occupation is undertaken;(vi) the circumstances in which the nominee is to be employed in the position.(10)The Minister is satisfied that the position associated with the occupation is:(a)genuine; and(b)a full-time position.(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.(11)If:(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and(b)the person is not an overseas business sponsor; and(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);the Minister is satisfied that:(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.(12)If:(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and(b)the person is an overseas business sponsor; and(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);the Minister is satisfied that:(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and(e)the person will give the Minister a copy of the contract signed by the person and the nominee.(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …(14)If:(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;the person has provided evidence to the Minister that the nominee satisfies:(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.(15)Subject to subregulation (16), if:(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;the Minister is satisfied that:(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and(g)either:(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or(ii) it is reasonable to disregard any such information.(16)However:(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and(ii) it is reasonable in the circumstances to do so; and(aa)the Minister may disregard the criterion in paragraph (15)(e) if:(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:(a)either:(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or(ii) it is reasonable to disregard any such information; and(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.(19)…

Ratio Decidendi

Legal Principle Established

For these reasons the requirements of reg 2.72(3) are met.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. At the time of decision, the Tribunal finds there is no adverse information known to Immigration or 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. Department records have confirmed that the applicant is a standard business sponsor for the period from 18 February 2021 to 18 February 2026. 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 information before the Tribunal that the applicant has any outstanding debt under s 140ZO of the Act, and which has not been paid in full. For these reasons the requirements of reg 2.72(5A) are met.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);·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). The nominee is not the holder of a Subclass 457 or Subclass 482 visa and there are no current family members of the nominee who hold a Subclass 457 or Subclass 482 visa as a family member of the nominee. 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, IMMI 19/048. The occupation must also apply to the nominee in accordance with the instrument. The applicant has specified the nominated occupation of Corporate General Manager (ANZSCO 111211) which corresponds to an occupation in the relevant compilation instrument LIN 19/048.