STANLEY THOMAS GORDON PTY. LTD. (Migration)

STANLEY THOMAS GORDON PTY. LTD. (Migration) [2018] AATA 365 (6 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Stanley Thomas Gordon Pty. Ltd.
CASE NUMBER:  1617715
DIBP REFERENCE(S):  BCC2016/2011775
MEMBER:Alison Mercer
DATE:6 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 06 February 2018 at 12:58pm

CATCHWORDS
Migration – Employer Nomination – HR Adviser - Requirement for nominated position to be on the list of eligible skilled occupations – Position removed from list of eligible skilled occupations after application made - Nominee previously approved for visas – Tribunal has no discretion to overlook the legislative requirement
LEGISLATION
Migration Act 1958, ss 140GB, 140GBA
Migration Regulations 1994, rr 2.72(10)(aa), 2.73

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 on 12 October 2016 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 applicant, Stanley Thomas Gordon Pty Ltd, applied for approval on 10 June 2016. A nomination of an occupation (Human Resources Adviser, or HR Adviser) 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), which required that the position associated with the nominated occupation was genuine. The delegate took into consideration the nature of the applicant’s business and the position description for the nominated position. She found that although a majority of the duties in the position description appeared to be mostly consistent with the occupational description for an HR Adviser in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary, but was not satisfied from the context of the business that the nominee was likely to be actually regularly performing the full breadth of duties listed in ANZSCO for an HR Adviser. In reaching this conclusion, the delegate acknowledged that the applicant’s business was NR consulting but noted that there were only 2 employees in total, and both were subclass 457 visa holders.
The Tribunal received a review application on 25 October 2016. It was lodged on behalf of the applicant by Mr Teng (Tim) Zhao, a director of the applicant, and was accompanied by a copy of the delegate’s decision and various supporting documents, including a statement by Mr Zhao regarding the genuine need for the nominated position within the business, the fact that the nominee had previously held a subclass 457 visa as the subject of an earlier successful nomination by the applicant, and evidence of how the nominee was recruited and why other local candidates were not found to be suitable for the position.
On 1 September 2017, the Tribunal wrote to Mr Zhao of the applicant to advise him that, as of 19 April 2017, the Minister had announced significant changes to the skilled occupations that could be nominated and approved for the purposes of a subclass 457 visa application, and that the occupation of HR Adviser (ANZSCO code 223111) had been removed from the list of eligible skilled occupations. The Tribunal noted that, as a result, it appeared that the applicant might no longer meet the requirement in r.2.72(10)(aa). The Tribunal invited Mr Zhao to provide submissions on this issue by 15 September 2017, and provided him with a link to the Department’s website where the changes were discussed in detail.
On 4 September 2017, the Tribunal received a response by email from Mr Zhao, in which he indicated that his company had sponsored the nominee for years, having successfully nominated him for a subclass 457 visa as an HR Adviser twice before the current refusal decision. He stated that he found the Department’s refusal decision of the applicant’s latest nomination to be unconvincing in failing to recognise the contribution of the nominee to the business in his capacity of HR Adviser. He further noted that the review application to the Tribunal was lodged before the changes of 18 April 2017 took place, and that they did not wish to withdraw the review application but have the matter resolved by the Tribunal.
On 20 November 2017, the Tribunal wrote to Mr Zhao to invite him (or another authorised officer of the applicant company) to attend a hearing on 13 December 2017.
On behalf of the applicant, Mr Zhao appeared before the Tribunal on 13 December 2017 to give evidence and present arguments. The Tribunal was assisted by the services of an interpreter in the Mandarin and English languages.
Mr Zhao reiterated that his business had had 2 previous nominations approved by the Department for the nominee Mr Zhengliang Yang, for the position of HR Adviser. They were therefore very surprised and disappointed when the third and current nomination was refused, and strongly disagreed with the delegate’s finding that the position associated with the nominated occupation was not genuine. Mr Zhao said that they were also very disappointed that the current nomination was now subject to legislative amendments removing the nominated occupation from the approved list of skilled occupations, when it had been on the list when they lodged the nomination and the review application. This was unfair and very disruptive to the business.
The Tribunal discussed with Mr Zhao its view that it would be futile to take additional detailed evidence about whether or not the position of HR Adviser was genuine or not, given that that occupation was now no longer able to be approved. Mr Zhao acknowledged the legislative change removing this occupation (and others) from the list but reiterated that it was very unfair to him and his business. He further noted that the business had had 5 employees, 4 of whom were now permanent residents, including another subclass 457 holder in the same occupation as the nominee, who had been granted a subclass 186 permanent residence visa without a problem. This made the nominee Mr Yang’s position seem very unfair.
In response to the Tribunal’s query, Mr Zhao said that the nominee was still employed by the business because he was now a dependent on his wife’s temporary residence visa, granted on investment grounds. After some discussion of the fact that the Department had indicated that a new instrument relating to the skilled occupation list would be published in January 2018, the Tribunal agreed to defer its decision until the publication of the new occupations list, in order to determine whether the occupation of HR Adviser was restored to the list or not. The Tribunal indicated that if it was not, then it would have no option but to affirm the decision under review, as the nomination would not meet r.2.72(10)(aa), regardless of whether the Tribunal found that the position associated with the nominated occupation was genuine or not.
On 18 January 2018, the Tribunal wrote to Mr Zhao to advise that the Department had announced changes to the skilled occupations list for the subclass 457 program, effective 17 January 2018; however, the occupation of HR Adviser had not been added back and remained excluded for the purposes of subclass 457 visas and associated nominations. The Tribunal noted that, as discussed at the hearing, this meant that the applicant could not meet r.2.72(10)(aa) as its nominated occupation did not correspond with one on the skilled occupation lists in the relevant instrument. The Tribunal indicated that it would therefore now proceed to make its decision but invited Mr Zhao to provide any further submissions he wanted to have taken into account by 24 January 2018.
The Tribunal did not receive any submissions, or any other communications, from Mr Zhao by 24 January 2018, and has not received anything further from him to date.
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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
Although the nomination application was originally refused on the basis that r.2.72(10)(f) was not met, as the delegate found that the position associated with the nominated occupation was not genuine, subsequent legislative amendments have meant that another sub-criterion of r.2.72(10) has become relevant and is in fact determinative to the outcome of this review: r.2.72(10)(aa).
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
It is not disputed that, when the applicant made its present nomination on 10 June 2016, the applicant’s nominated occupation of HR Adviser (ANZSCO code 223111) was specified for the purposes of r.2.72(10)(a) or (aa) in the applicable written instrument in force at the time, being IMMI 15/092. The applicant’s occupation was listed in the Consolidated Skilled Occupation List (CSOL) in that instrument.
However, as discussed with Mr Zhao of the applicant at the Tribunal hearing, significant legislative changes came into effect on 19 April 2017, with the effect that IMMI 15/092 (and subsequent instruments which came into effect after it) was superseded by a new instrument issued for the purposes of r.2.72(a) and (aa), being IMMI 16/059. This instrument was stated to apply to all nomination applications lodged on or after 19 April 2017 and to those lodged before 19 April 2017 that were not yet decided. IMMI 16/059 contained 2 occupational lists approved for the purposes of r.2.72(10)(a) or (aa): the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL). The applicant’s nominated occupation of HR Adviser (ANZSCO code 223111) was not on either list and thus the applicant’s nomination cannot meet r.2.72(10)(aa), which requires that the nominated occupation corresponds to one on the list specified in the relevant written instrument.
On 1 July 2017, a new instrument specifying approved occupations for the purposes of r.2.72(10)(aa) for subclass 457 visa program came into effect, being IMMI 17/060. This instrument contains new versions of the MLTSSL and the STSOL but neither of them includes the applicant’s nominated occupation of HR Adviser. This instrument is expressed to apply to all nominations made on or after 1 July 2017, and to those made but not finally determined before 1 July 2017, regardless of whether, for a nomination in relation to an applicant for a visa, the application was made before, on or after 1 July 2017. IMMI 16/059 was repealed by IMMI 17/081.
As discussed with Mr Zhao at the hearing, announcements by the Australian government indicated that revisions would be made to the above lists that would come into effect in January 2018. On 17 January 2018, a new instrument specifying approved occupations for the purposes of r.2.72(10)(aa) for subclass 457 visa program came into effect, being IMMI 18/004. This instrument contains new versions of the MLTSSL and the STSOL but neither of them includes the applicant’s occupation of HR Adviser (ANZSCO code 223111). This instrument is expressed to repeal IMMI 17/060, but states that IMMI 17/060 continues to apply in relation to a nomination of an application that was made before 17 January 2018. Accordingly, the Tribunal is satisfied that IMMI 18/004 applies to nominations made on or after 17 January 2018, and that IMMI 17/060 continues to apply to the nomination under review in this case.
The effect of this is that the applicant’s occupation is no longer specified for the purposes of r.2.72(10) (aa) by an instrument that is in effect.
Accordingly, for these reasons, the Tribunal must find that the requirements of r.2.72(10)(aa) are not met.
As failure to meet one sub-criterion of r.2.72 is means that the nomination application cannot be approved, it is therefore unnecessary for the Tribunal to further consider whether the applicant meets the original sub-criterion in dispute, r.2.72(10)(f): whether the position is genuine or not.
The Tribunal acknowledges the concerns expressed by Mr Zhao in relation to the adverse effect on his business and on his nominee Mr Yang caused by legislative changes that took place after the applicant had made its nomination (and in circumstances where 2 nominations of the same nominee had previously been approved), but is bound to make its decision according to the applicable law. It has no discretion to overlook the requirement for the applicant to satisfy r.2.72(10)(aa), which is now subject to IMMI 17/060, as set out above.
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.
Alison Mercer
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)a standard business sponsor; or
(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.

[2018] AATA 365

6 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal