SMIT Enterprises Pty Ltd (Migration)

SMIT Enterprises Pty Ltd (Migration) [2024] AATA 642 (15 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SMIT Enterprises Pty Ltd
REPRESENTATIVE:  Ms Kathryn Johnson (MARN: 9803583)
CASE NUMBER:  2111608
HOME AFFAIRS REFERENCE(S):          BCC2020/2698452
MEMBER:Warren Stooke AM
DATE:15 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 15 March 2024 at 7:28pm
CATCHWORDS

MIGRATION – application for approval of nomination of position – medium-term stream – chef – contract of employment not provided – loss of entitlement to hearing – no satisfaction that applicant has met employment and statutory obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.72(11)(e), 2.73
CASES
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 Home Affairs on 31 August 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 24 November 2020. 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 the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy Reg. 2.72(11)(e) because the applicant did not provide the required contract of employment to demonstrate that the applicant met the criterion in subregulation 2.72(11)(e). The applicant was afforded a reasonable period of time to respond has passed, with no response from the applicant. In the absence of a written contract of employment, the delegate was not satisfied that the applicant satisfied the criterion in paragraph 2.72(11)(e)
The applicant was represented in relation to the review.
On 16 October 2023 the Tribunal corresponded with the applicant to provide information pursuant to s359(2) to the Tribunal pertaining to the nominated position with a response required by 30 October 2023.
On 23 October 2023, the applicant sought an extension of time to respond to the Tribunal’s correspondence of 16 October 2023 and the Tribunal corresponded with the applicant, on the same date, with the applicant to provide information pursuant to s359(2) to the Tribunal pertaining to the nominated position with a response required by 1 December 2023. As at the date of decision, the applicant has not provided the information sought by the Tribunal.
The review applicant has not provided the information within the prescribed period and no further application for an extension has been sought or granted. 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
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 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.
On 28 June 2021, the Department requested the applicant to provide the following information:
·Signed employment contract
·Evidence of genuine full-time position and/or occupation alignment
·Other requirements
On 1 September 2021, the applicant provided the Tribunal with an image copy of a contract of employment between Rory Smit for the Crab King Company and the nominee, Reno Santos that was signed on 31 August 2021 by the parties to the contract and a subsequent contract of employment dated 18 April 2023 in the same format, as the previous contract of employment was provided to the Tribunal on 19 April 2023.
On 16 October 2023, the Tribunal pursuant to s359(2) requested the applicant to provide the Tribunal with the following information:
“16 October 2023
Dear Mr Smit
INVITATION TO PROVIDE INFORMATION – SMIT ENTERPRISES PTY LTD
I am writing on instruction from the Member conducting your review, about the
application for review made by SMIT Enterprises Pty Ltd ('the applicant' or 'the
nominator') in respect of a decision to refuse a business nomination application under
s 140GB of the Migration Act 1958 (the Act).
In order for the Tribunal to approve the business nomination application lodged by the
applicant, it must be satisfied that the requirements in reg 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 criterion that the delegate found was
not met.
The Tribunal now requires updated and current information addressing these
criteria. Accordingly, and without limiting the information that may be given, you or
another person authorised by the applicant are invited to give the following information
in writing:
1. Information about company and business registration:
·for example a current and historical extract from the Australian
Securities and Investment Commission (ASIC) that includes past and
present office holders and shareholders (asic.gov.au); and
·an extract from the Australian Business Register
(abr.business.gov.au)
2. Information about current approval as a Standard Business Sponsor or being
party to an approved work agreement;
·for example, a record of approval as a Standard Business Sponsor
that has not lapsed or ceased
3. Information about directly operating an active and lawful business in Australia,
and the businesses’ financial position for at least the last two financial years;
·for example, tax returns and business activity statements (BAS) that
have been lodged with the Australian Taxation Office
·financial statements prepared by an accountant/ financial advisor for
the two most recently completed financial years that include a
detailed profit and loss statement and balance sheet
4. Information about the business’s organisational structure and where the position
associated with the nominated occupation sits in relation to that structure;
·for example an organisational structure chart that includes all of the
current and proposed employees, their position title/duties and lines
of reporting, whether they are full-time or part-time and whether they
are an Australian citizen, permanent resident or visa holder
5. Information about the roles and duties of the nominated occupation and how
they correspond to the nominated occupation’s position description in ANZSCO;
·for example, a description of duties and responsibilities for
nominated occupation and how they fit within the structure and
needs of the business
·a comparison of how the roles and duties of the nominated
occupation match or are different from the occupation description in
ANZSCO (see and type
the nominated occupation’s 6 digit ANZSCO code number into the
‘Search’ function)
6. If the nominated occupation is subject to an inapplicability condition, information
about why the condition does not apply in the circumstances of your case.
·The instrument specifying the occupations, in force at the time the
nomination application is made, provides the relevant inapplicability
conditions that the nominated occupation may be subject to
7. Information about the annual market salary rate for the nominated occupation,
the nominee’s annual earnings and the terms and conditions of employment,
including whether or not they are more favourable than those provided to an
Australian citizen or permanent resident performing equivalent work in the same
location;
·The annual market salary rate for the nominated occupation must be
determined in accordance with the method specified in the relevant
instrument. Relevant information to give may include, for example,
an employment contract or letter of offer that complies with relevant
awards for the nominated occupation (if any) and also any salary
surveys, advertisements, payroll reports and PAYG statements that
relate to equivalent work in the same location
8. Information about the current and previous visa status of the nominee, and, if
applicable, their English language ability;
·for example, the type of visas they held in Australia and when, and
copies of any English language test results that the nominee has
undertaken
9. Information about whether you satisfied the labour market testing condition or
information that you are an exempt applicant.
·for example, information that was provided with the nomination about
any redundancies or retrenchments of an Australian citizen or
permanent resident worker in the four months before lodgement of
the nomination application, information that was provided with the
nomination about the advertising conducted (and any fees paid)
within the period immediately before lodgement of the nomination
application, or information about why the labour market testing
condition does not apply in your case, for example, if it would be
inconsistent with an international trade obligation of Australia as set
out in a legislative instrument
Information that you give the Tribunal should be up to date and address all the
relevant criteria.
This information, in writing, should be received by 30 October 2023. If the information
is in a language other than English, it must be accompanied by an English translation
from an accredited translator.
If you or another person authorised by the applicant cannot provide the information by
30 October 2023, you or another person authorised by the applicant may ask us for
an extension of time in which to provide the information. If an extension of time
request is made, it must be received by us before 30 October 2023 and it must state
the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may
make a decision on the review without taking any further action to obtain the
information. The applicant will also lose any entitlement it might otherwise have
had under the Migration Act to appear before us to give evidence and present
arguments.
Alternatively, if the applicant’s circumstances have changed and the applicant no
longer wishes to proceed with this application for review, please complete a withdrawal
form by clicking on the link directly below.
Click here to access the online Withdrawal form
If you have any questions, please email [email protected], or contact me on the
number listed below, or telephone our national enquiry line on 1800 228 333. For
language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”
On 23 October 2023, the applicant sought an extension of time to respond to the Tribunal’s correspondence of 16 October 2023 and the Tribunal corresponded with the applicant, on the same date, with the applicant to provide information pursuant to s359(2) to the Tribunal pertaining to the nominated position, with a response required by 1 December 2023. As at the date of decision, the applicant has not provided the information sought by the Tribunal.
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.
In the absence of a response to the information sought in the Tribunal’s s359(2) correspondence of 16 October 2023 and the 23 October 2023, the Tribunal is not satisfied whether the applicant has met all their employment and statutory obligations. As such, the Tribunal is not in a position to declare that there is no adverse information pertaining to the business of the applicant.
For these reasons the requirements of reg 2.72(4) are not met.
Nominator is a standard business sponsor
Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor.
In the absence of a response to the information sought in the Tribunal’s s359(2) correspondence of 16 October 2023 and the 23 October 2023, and specifically information relating to the approval of a standard business sponsorship, the Tribunal is not satisfied that the applicant has an approved standard business sponsorship for the nominated occupation of Chef – 351311.
For these reasons the requirements of reg 2.72(5) are not 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.
In the absence of a response to the information sought in the Tribunal’s s359(2) correspondence of 16 October 2023 and the 23 October 2023, the Tribunal is not satisfied that the nominated occupation of Chef – ANZSCO Code: 351311 is full-time and genuine. In this regard, the applicant provided a signed contract of employment dated 18 April 2023, however, no evidence of payment to the nominee has been provided to the Tribunal, nor hours of work, contributions to superannuation or evidence that the nominee was provided with a Fair Work Information Statement at the time of engagement. As such, the Tribunal is not satisfied that the nominee has been genuinely employed on a full-time position as a Chef.
For these reasons the requirements of reg 2.72(10) are not met.
Employment under contract
Regulations 2.72(11) and (12) require that the nominee will be engaged only as an employee under a written contract of employment and that the applicant will give a copy of the contract, signed by the employer and nominee, to the Minister, unless the nominated occupation is specified in the instrument IMMI 19/048 of the Register of Instruments: Business Visas. In the former case, where the applicant is not an overseas business sponsor, the nominee must be employed by them or an associated entity (reg 2.72(11)), and if the applicant is an overseas business sponsor, the nominee must be employed by the applicant (reg 2.72(12)). In this case, the applicant is not an overseas business sponsor and reg 2.72(11) must be met.
Whilst the applicant has provided the Tribunal with a signed contract of employment dated 18 April 2023, there is no evidence before the Tribunal of payment to the nominee of the $65,000 salary that was contracted, nor the hours of work, contributions to superannuation or evidence that the nominee was provided with a Fair Work Information Statement at the time of engagement. As such, the Tribunal is not satisfied that the nominee has been genuinely employed on a full-time basis in a position of Chef, in compliance with the contract of employment furnished to the Tribunal on 19 April 2023.
For these reasons the requirements of reg 2.72(11) are not met.
Employment conditions
Regulation 2.72(18)(a) requires that 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 permanent resident performing equivalent work at the same location, unless it is reasonable to disregard any such information.
If the applicant is lawfully operating a business in Australia, they must also not have engaged in discriminatory recruitment practices: reg 2.72(18)(b). In this case, the Tribunal is not satisfied that the applicant is lawfully operating a business in Australia and reg 2.72(18)(b) does apply.
Further, in the absence of a response to the information sought in the Tribunal’s s359(2) correspondence of 16 October 2023 and the 23 October 2023, the Tribunal is not satisfied that the nominated occupation of Chef – ANZSCO Code: 351311 is full-time and genuine. In this regard, the applicant provided a signed contract of employment dated 18 April 2023, however, no evidence of payment to the nominee has been provided to the Tribunal, nor hours of work, contributions to superannuation or evidence that the nominee was provided with a Fair Work Information Statement at the time of engagement. As such, the Tribunal is not satisfied that the nominee has been genuinely employed on a full-time position as a Chef. As such, the Tribunal cannot be satisfied that the applicant has complied with Regulation 2.72(18)(a).
For these reasons the requirements of reg 2.72(18)(a) and reg 2.72(18)(b) are not met.
For the reasons given above, the Tribunal is not satisfied that 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.
Warren Stooke AM
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 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)…

[2024] AATA 642

15 March 2024

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