Spectrum Analysis Australia Pty Ltd (Migration)

[2023] AATA 3935

Spectrum Analysis Australia Pty Ltd (Migration) [2023] AATA 3935 (24 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Spectrum Analysis Australia Pty Ltd

REPRESENTATIVE:  Ms Pina Careri (MARN: 9359608)

CASE NUMBER:  1931635

HOME AFFAIRS REFERENCE(S):          BCC2019/4919529

MEMBER:Katie Malyon

DATE:24 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 24 July 2023 at 2:57 pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Accountant (General) – genuine position – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of decision – Migration and Refugee Matters Practice Direction – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 359C, 360, 363, 363A

Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 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).

2. The applicant, Spectrum Analysis Australia Pty Ltd T/A Spectrum Analysis ABN 87 074 495 926 (the Company), applied for approval on 1 October 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 of the Act.

3. In this case, the Company’s nomination is in respect of Vietnamese national, Duc Nam Pham, to work in the nominated occupation of Accountant (General) ANZSCO 221111.  Mr Pham has applied for a Subclass 482 visa in the Medium-term stream.

4. The delegate decided not to approve the nomination on the basis that the Company did not satisfy regulation 2.72(10)(a) because she was not satisfied, on the evidence provided, that the tasks align with the nominated occupation of Accountant (General) ANZSCO 221111.  The delegate was not satisfied that the position associated with the nominated occupation is genuine. 

5. Inconsistent with cl 5.1 of the Tribunal’s Migration and Refugee Matters Practice Direction dated 1 August 2018, the Company did not provide, on lodgement of its application for review, all relevant evidence and a detailed submission setting out its claims as to why it had sought review of the delegate’s refusal of its nomination. 

   The Tribunal’s s 359(2) letter

6. To enable the Tribunal to assess whether the Company meets all of the relevant requirements for approval of its nomination as at the time of this decision, on 26 May 2023 the Tribunal wrote to the Company pursuant to s 359(2) of the Act and invited it to provide updated and current information about the business and the nominated position. The Tribunal’s invitation letter was sent by email to the person appointed to receive communications on behalf the Company, its Registered Migration Agent, Ms Pina Careri.

7. The Tribunal’s s 359(2) letter advised the Company that, if information in writing was not received by the Tribunal on or before 9 June 2023 or, in the alternative, if it did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and, the Company would lose any entitlement it might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

8. On 7 June 2023, Ms Careri emailed the Tribunal and requested an extension of time to provide information in response to its s 359(2) letter. The Tribunal granted an extension of the deadline until 7 July 2023.

9. The Tribunal is satisfied that its invitation was properly dispatched to the email address of the Company’s representative. Although the Company requested an extension of time of time for a month to respond to the Tribunal’s s 359(2) a letter and the Tribunal granted the requested extension no response has been received from the Company in response to the Tribunal’s s 359(2) letter. The Company has not provided any updated and current information about its business and the need to fill the position of Accountant (General) ANZSCO 221111 with the nominee Mr Pham. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, the Company is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasranv MIAC [2010] FCAFC 40.

10. Although the Company has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support his review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that the Company meets all of the relevant requirements of reg 2.72 of the Regulations is likely to be forthcoming, whether the Company has had a fair opportunity to provide the information or documents already, and the significance of the information or documents to the Company. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

11. As noted above, the Tribunal wrote to the Company under s 359(2) of the Act inviting it to provide current and updated information demonstrating that its nomination meets all the relevant requirements in reg 2.72 of the Regulations. The Company has failed to provide any of the requested information within the extended period set for this purpose, or seek further additional time in which to do so.

12. In the circumstances of this case, the Tribunal considers the Company has had sufficient time to provide requested information and thereby address all of the issues arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

13. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

    Position must be genuine and full-time

15. 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.

16. As noted above, the delegate was not satisfied that the job tasks of the position aligned with the tasks of the nominated occupation of Accountant (General) ANZSCO 221111.  It was found that, while the nominated position exists, the majority of tasks of the position are not commensurate with those of the nominated occupation of Accountant (General) ANZSCO 221111.  The delegate expressly noted that the majority of the tasks of the position involve the nominee assisting the Company’s finance manager with a range of tasks.  Having regard to the activities of the business, the scale of those activities, the Company’s staffing structure and the position description, the delegate concluded that the position associated with the nominated occupation is not what it purports to be.  As such, the delegate was not satisfied that the majority of tasks that the nominee is actually likely to perform aligned substantially with the tasks of the nominated occupation of Accountant (General) ANZSCO 221111 as described in ANZSCO. 

17. No documentation was lodged in support of the Company’s review application at the time it lodged its application for review.  The Company was invited on 26 May 2023 to provide updated and current evidence regarding its business and the nominated position.  As noted above, the Company requested an additional month in which to respond to the Tribunal’s
    s 359(2) letter and a further extension of time until 9 July was granted. However, as at the date of this decision, the Company has not provided the information requested in the Tribunal’s s 359(2) letter. In these circumstances, the Tribunal has no current information before it to demonstrated that the position is genuine. Consequently, the Company does not satisfy reg. 2.72(10)(a) of the Regulations.

18. For these reasons, the requirements of reg 2.72(10) of the Regulations are not met.

19. Accordingly, the Tribunal is not satisfied that the Company meets the applicable criteria for its nomination to be approved.  In the circumstances, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to approve the nomination.

    Katie Malyon

    
    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)…

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