SK ONTIME PTY LTD (Migration) - [2024] AATA 580

SK ONTIME PTY LTD (Migration) [2024] AATA 580 (19 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SK ONTIME PTY LTD
REPRESENTATIVE:  Ms Jackie Lyon (MARN: 0401336)
CASE NUMBER:  2201198
HOME AFFAIRS REFERENCE(S):          BCC2021/1005800
MEMBER:SM Michael Cooke
DATE:19 March 2024
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 19 March 2024 at 11:48am
CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – carpenter – genuine position – carpentry or maintenance – tasks of position and totality of evidence, including photos from jobsites – labour market testing inconsistent with international trade obligation – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 Home Affairs on 17 January 2022 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 applied for approval on 29 April 2021. 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 in Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10) because the delegate did not find the nominated position was ‘genuine’.
The applicant’s representative has tendered copious additional information pursuant to reg 2.72. In particular, she has addressed the issue of the ‘genuineness’ of the nominated position.
The Tribunal finds it has sufficient evidence to finalize the decision ‘on the papers’ without recourse to a hearing.
The applicant was represented in relation to the review.
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 work sponsor and meets the requirements in reg 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. In…

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.

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Details

AGLC: SK ONTIME PTY LTD (Migration) [2024] AATA 580
Case: [2024] AATA 580
Decision Date: 19 March 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by SK ONTIME PTY LTD for approval of a nomination for a carpenter position under the medium-term stream. The dispute centred on whether the nominated position was genuine and whether the applicant had met all the requirements for approval of the nomination under the Migration Regulations 1994 (Cth).

The Tribunal was required to determine if the nominated occupation and its code corresponded to a specified occupation in the relevant instrument, if the position was genuine and full-time, and if the labour market testing requirements had been met. Additionally, the Tribunal had to assess whether the nominator was a standard business sponsor and had paid any outstanding debts under section 140ZO of the Migration Act 1958 (Cth).

The Tribunal reasoned that the nominated occupation, Carpenter (331212), was listed in the relevant instrument. It applied the principles from *Cargo First Pty Ltd v MIBP* [2016] FCA 30 to qualitatively assess the genuineness of the position by comparing the nominated occupation with the tasks described, considering evidence including jobsite photos. The Tribunal found no adverse information known to the Department of Immigration, confirmed the nominator was a standard business sponsor, and found no outstanding debts under section 140ZO. The Tribunal also noted that specific requirements for existing Subclass 457 or 482 visa holders did not apply as the nominee was not such a holder.

The Tribunal decided to set aside the original decision and substitute it with a decision approving the nomination, finding that all applicable regulatory requirements had been met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 work sponsor and meets the requirements in reg 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. In addition, the labour market testing requirements in s 140GBA must be met.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.Findings and reasons about whether the process in reg 2.73 was followed considering the matters below: ·The person is nominating an occupation under s 140GB(1)(b) in relation to a holder of a Subclass 457, or a holder, applicant or a proposed applicant for a Subclass 482 visa: reg 2.73(1);·The nomination was made using the approved form and fee: regs 2.73(3), (4) and (5);·The nomination was accompanied by any applicable nomination training contribution charge: reg 2.73(5A);·The nomination is in the Short-term stream if the occupation is a short term specified skilled occupation, or the Medium term stream if the occupation is a medium and long term strategic skills specified occupation: reg 2.73(6);·The applicant has identified the nominee in the nomination: reg 2.73(8);·The nomination includes the name of the occupation and the corresponding 6 digit code, the location/s at which the occupation will be carried out, the proposed period of stay for a visa granted on the basis of the nomination, the annual turnover for the nomination, and any other specified information: reg 2.73(9);·The nomination includes written certification as to whether or not the person has engaged in conduct that contravenes s 245AR(1) of the Act: reg 2.73(12);·The nomination includes written certification that the employment contract with the nominee complies or will comply with Commonwealth, State or Territory employment laws, unless the occupation is exempt: reg 2.73(13);·The nomination includes written certification that the tasks of the position include a significant majority of the tasks specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in ANZSCO (or the relevant instrument if no ANZSCO code; and, unless the occupation is exempt that the position is in the person’s business if they are or would be an overseas business sponsor, or, in any other case, is in the person’s or an associated entity’s business: reg 2.73(14). The tribunal finds from the evidence on file that the requirements of reg 2.72(3) are met.No adverse information known to Immigration.

Ratio Decidendi

Legal Principle Established

The tribunal finds from the evidence on file that 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. The Tribunal finds no evidence that there is any adverse information known to Immigration 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 Tribunal finds from contemporary evidence before it that the person is a standard business sponsor. 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. The Tribunal finds no evidence that the person has any outstanding debt under s 140ZO. 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). 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. The Tribunal notes that evidence has been provided that the nominee satisfies any language test requirements in the relevant Instrument which would apply if he were a nominee for a Subclass 482 visa in the Medium-term stream as applicable.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 18/048. The Tribunal finds that the nominated occupation and its 6-digit code (Carpenter – 331212) correspond to an occupation and 6-digit code specified in the relevant Instrument. For these reasons the requirements of reg 2.72(8) are met.Position must be genuine and full-time. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement 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. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.