STAR SEED PTY LTD (Migration)
[2022] AATA 3865
•28 October 2022
STAR SEED PTY LTD (Migration) [2022] AATA 3865 (28 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: STAR SEED PTY LTD
CASE NUMBER: 1925170
HOME AFFAIRS REFERENCE(S): BCC2019/1982882
MEMBER:Karen McNamara
DATE:28 October 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 28 October 2022 at 3:57pm
CATCHWORDS
MIGRATION – application for approval of nomination of occupation – short-term stream – cook or chef – genuine position – late response to tribunal’s invitation to provide updated and current information – decision made on papers – financial losses for two previous years and no statements for most recent year provided – nominated occupation of cook and employment contract for chef – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140 GBA, 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), ss 2.72(10)(a), 2.73CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1STATEMENT 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 20 August 2019 to refuse to approve the application by STAR SEED PTY LTD (the applicant) for 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 17 April 2019. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination because the delegate was not satisfied that the position associated with the nominated occupation was genuine as required by r.2.72(10)(a).
The applicant lodged an application for review with the Tribunal on 8 September 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
On 20 September 2022, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, (dispatched by email to the authorised recipient), inviting the applicant to provide updated and current information demonstrating that the applicant met all the relevant s.140GBA and r.2.72 criteria. The Tribunal provided detailed examples of the kind of information that would assist it. The letter also advised that, in order for the nomination of a position to be approved, the Tribunal must be satisfied that all of the relevant criteria in r.2.72 and s.140GB are met at the time of its decision.
The invitation was sent to the authorised recipient at the last email address provided in connection with the review and advised that, if the information was not provided in writing by 4 October 2022, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
On 11 October 2022, the Tribunal received an email from the applicant’s authorised recipient (Mr Hugh Cashman referred to below as the applicant) seeking an extension of time. The applicant stated as follows:
‘ I am writing to ask for an extension of time.
I was supposed to have already sent information to the Tribunal by the 4th Oct.
Unfortunately I have been out of action due to an illness and have missed out on fulfilling lots of tasks over the last month.
I hope that you may be able to afford me some catch up time. I am sorry not to have been in contact sooner.’
By email sent 11 October 2022, the Tribunal responded to the applicant noting that because the applicant failed to seek an extension or provide information by the due date of 4 October 2022, the Tribunal may make a decision on the review without taking any further action to obtain the information, and the applicant would lose any entitlement they might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments. The email further noted that the Tribunal would not be making a decision on the matter before 25 October 2022 and invited the applicant to provide information and any other material in support of the review application no later than 25 October 2022.
On 23 and 24 October 2022, the applicant provided to the Tribunal the following:
·ASIC Annual Company Statement
·ASIC Invoice statement 10 July 2022
·Notification of approval as a Standard Business Sponsor 18 December 2018
·Annual report 2019/2020 including financial statements for the years ended 30 June 2020 and 30 June 2021
·Employee list
·ANZSCO description Chef 351311
·Employment contract dated 16 June 2021 – Jinjong Kim
·Pearson PTE Academic – Jinjong Kim & Wonyoung Kang
·VEVO Visa details check - Jinjong Kim & Wonyoung Kang
·Advertisements (Jobactive & Seek dated 6/2/21 and Jora dated 6/3/21)
The Tribunal notes the applicant contacted the Tribunal seven days after the prescribed period of 4 October 2022, seeking an extension and provided the above information to the Tribunal on 23 and 24 October 2022. The applicant therefore failed to seek an extension and provide the information within the prescribed period.
Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information (subsection 359C(1) of the Act) and pursuant to s.360(3) of the Act, 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 given consideration as to whether it should exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant. The Tribunal notes that the applicant was advised on 11 October 2022 that information could be provided prior to the Tribunal proceeding to a decision, which would not be before the 25 October 2022. The applicant subsequently provided to the Tribunal, information as noted previously in this decision.
The Tribunal has also given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application, noting that no request seeking an adjournment has been received.
In doing so, 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the application of the principle of reasonableness when exercising its discretion, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.
[1] [2002] FCA 617
[2] [2012] FMCA 28
[3] [2013] HCA 18 (8 May 2013)
[4] [2014] FCAFC 1 (4 February 2014)
[5] [2014] FCA 915 (28 August 2014)
The Tribunal considered whether, in the circumstances of this case, the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.
The Tribunal is satisfied that the invitation to provide information was sent to the authorised recipient at the correct email address. The applicant did not request an extension of time or provide information within the prescribed timeframe. The applicant did however request an extension and subsequently provided information to the Tribunal outside of the prescribed time.
The Tribunal has had regard to the fact that the application was refused by the Department on 20 August 2019 because the delegate concluded that the applicant had not demonstrated it met the requirements of r. 2.72(10)(a). The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for over three years of the reasons for the nomination refusal. On the 23 and 24 October the applicant submitted information to address the requirements in reg 2.72: s 140GB(2).
In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.
Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant, or to exercise its discretion under s.363(1)(b) to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements in reg 2.72: s 140GB(2). Additionally, pursuant to s.360(3) of the Act, 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[6].
[6] Hasran v MIAC [2010] FCAFC 40.
The Tribunal is not disposed to delay making a decision indefinitely. Therefore, having afforded consideration to the circumstances of this matter, the Tribunal for the reasons aforementioned in this decision, has resolved this matter on the papers.
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.
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.
The Tribunal considers there is no single test for determining whether a nominated position is “genuine”, and the issue involves the Tribunal considering the qualitative assessment (as per Cargo) and the particular facts and circumstances and the actual tasks and duties performed and described as the nominated occupation. The Tribunal must consider a number of factors, including whether the evidence discloses that the nominated occupation is genuine based on the tasks performed, the financial performance of the nominator as a business entity, and its capacity to employ the nominee in the occupation.
In this case, the nominated position/occupation is for a Cook (ANZSCO 351411). The delegate was not satisfied that the business is able to financially support the position, or that the business is operating at a level consistent with the nominated position being genuine. The delegate therefore was not satisfied that the position associated with the occupation is genuine and refused the nomination on the basis that r.2.72(10)(a) was not met.
The Tribunal’s letter to the applicant dated 20 September 2022, invited the applicant to provide updated and current information about all the relevant requirements in r.2.72 and s.140GB. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all the relevant criteria are met at the time of its decision.
The Tribunal invited the applicant to provide updated and current information about a range of matters, including the roles and duties of the nominated position, how they correspond to the position description in ANZSCO, where the nominated position sits within the organisation structure of the business and the current financial circumstances of the applicant.
The Tribunal is required to assess the requirements for approval of the nomination on the evidence before it at the time of decision. In assessing that the position associated with the nominated occupation is genuine, the Tribunal has taken into consideration the documents submitted by the applicant with its nomination application and the documents submitted on review.
In support of the current financial circumstances of the business, the applicant has provided the company’s financial statements for the 2020 and 2021 financial years. The Tribunal notes that in both financial years the business recorded losses. In 2021 the applicant recorded a loss of ($19,197). An increase in sales revenue was reported over the 2020 to 2021 financial year, recorded in 2021 as $741,698 with salary and wages expense recorded as $170,327 and net equity $35,430. The applicant has not provided financial statements or BAS returns for the most recent financial year which ended 30 June 2022, nor has the applicant provided an explanation to the Tribunal as to why this information was not available to the Tribunal.
The Tribunal notes that the applicant has provided an employment contract dated 16 June 2021 which specifies the hours of work are 38 per week and a list of tasks as per ANZSCO for the occupation of Chef (ANZSCO 351311) with percentage of time spent against each task. The Tribunal notes that the nominated occupation in this matter is Cook (ANZSCO 351411). The Tribunal therefore affords little weighting to this document as evidence of the tasks undertaken by the nominee. Additionally, there is no compelling evidence before the Tribunal to support the employment and actual hours worked by the nominee including payroll, bank statements or information provided to the ATO including the nominee’s PAYG’s/income statements.
On the totality of the evidence before it, the Tribunal is of the view that there is lack of evidence that the Tribunal considers concrete and persuasive, to support the current financial position of the business, its capacity to employ the nominee full time, the actual tasks performed by the nominee and how these tasks align with the occupation descriptors under ANZSCO 351411. The Tribunal is therefore unable to be satisfied at the time of its decision, that the position associated with the nominated occupation is genuine. Accordingly, the requirements in r.2.72(10)(a) are not met and therefore the application does not satisfy the requirements of r.2.72(10).
Further, the Tribunal requested updated and current information relevant to the requirements of r.2.72 that are also required to be satisfied for the nomination to be approved. In the absence of updated and current information as to these requirements, the Tribunal is also unable to be satisfied that all the requirements of r.2.72 are met as required.
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.
Karen McNamara
MemberATTACHMENT - 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)…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Appeal
0
6
0