Superstar Home & Office Cleaning Pty Ltd (Migration)

Superstar Home & Office Cleaning Pty Ltd (Migration) [2018] AATA 3515 (26 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Superstar Home & Office Cleaning Pty Ltd
CASE NUMBER:  1702349
DIBP REFERENCE(S):  BCC2016/2753421
MEMBER:R. Skaros
DATE:26 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 26 July 2018 at 2:10pm

CATCHWORDS
Migration – Employer Nomination – Exclusion from specification of nominations – Inapplicability conditions – Applicable instrument – Application under review is not finally determined – Turnover amount – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), r 2.72

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 24 January 2017 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 applied for approval on 19 August 2016. A nomination of an occupation 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) because the delegate was not satisfied that the position associated with the nomination occupation of Customer Service Manager was genuine.
In support of the review, the applicant’s representative provided a number of supporting documents and submissions to the Tribunal. The Tribunal has considered the relevant documents and submissions further below.
The applicant’s Director, Ms Maria Alves Condie, appeared before the Tribunal on 15 June 2018 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the hearing.
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).
In the nomination application, the applicant nominated the occupation of Customer Service Manager (149212) and identified Ms Arilene Alves Da Silva as the applicant for a Subclass 457 visa. On this basis, the Tribunal considers that the applicable requirements for approval of the nomination are those that were in effect prior to 18 March 2018.
Specified occupation
The issue in this case turned on whether the applicant meets the requirements in r.2.72(10)(aa), which requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument, and the occupation must be applicable to the person identified in the nomination in accordance with the relevant instrument.
The relevant instrument as at the time of this decision is IMMI 17/060. This instrument came into effect on 1 July 2017 and applies to nominations made on or after 1 July 2017 or, relevant to this case, to nominations made and not finally determined by 1 July 2017. It does not apply to nominations made on or after 17 January 2018.
Relevantly, IMMI 17/060 includes the occupation of Customer Service Manager (149212) for the purposes of r.2.72(10)(aa) however that occupation is subject to the following inapplicability conditions:
Item 2: The position has a nominated base salary of less than AUD65,000
Item 11: The position:
(a) is based in a front-line retail setting; or
(b) predominantly involves direct client transactional interaction on a regular basis.
Item 19: the position is in a business that has an annual turnover of less than AUD 1 million
In the submissions, the representative indicated that the position has a base salary of $58.000. In support of this, the representative provided a copy of the employment contract. It was also noted that the position predominantly involves direct client transactional interaction on a regular basis. In support of this, numerous customer references, client correspondence and a position description were provided. It was also noted that the business has an annual turnover of less than AUD 1 million. The applicant’s financial reports and activity statements were provided. The income statement for the year ended 30 June 2017 indicated that the applicant’s total trading revenue was $246,791.
At the hearing, Ms Condie provided a brief history of the business and its activities. She also provided details of the nominee’s employment and the contribution the nominee has made in assisting the business grow. The Tribunal explained to Ms Condie the requirements in r.2.72(10)(aa) and the conditions placed on the nominated occupation of Customer Service Manager as specified in the relevant instrument. Ms Condie indicated that she believed they met the requirements. After further discussions, Ms Condie came to understand that the inapplicability conditions mean that the nominated occupation is excluded if any of the inapplicability conditions applied. The Tribunal explained to Ms Condie that because the business has an annual turnover of less than AUD 1 million the occupation of Customer Service Manager is excluded from the specifications of nominated occupations.
At the hearing, the representative did not make any submissions on the issue relating to the inapplicability conditions however after the hearing the Tribunal received written submissions in which the representative submitted that the caveats are not applicable in this case. By way of background, the representative explained that in 2012 the applicant had a nomination in the same occupation approved and the nominee was granted the related 457 visa. A subsequent nomination, which is the subject of this review, and the related 457 visa applications were lodged on 19 August 2016. It was noted that on 24 January 2017 the delegate refused to approve the nomination on the basis that r.2.72(10)(f) was not met and that the nominee’s 457 visa application was refused on 28 February 2017 on the basis that the nomination was not approved. It was submitted that the instrument, IMMI 17/040, which came into effect on 19 April 2017 and introduced the caveats on various occupations, does not apply to the applicant as the Explanatory Statement to IMMI 17/040 specifies that the instrument commences the day after it is registered, and that, as the applicant and the nominee’s applications were refused prior to that date, the caveats cannot be the reason for refusal.
The Tribunal has had regard to these submissions however as indicated above, the Tribunal considers, for the reasons that follow, that the applicable instrument at the time of this decision is IMMI 17/060.
As this nomination was made after 1 July 2010 and before 18 March 2018, the relevant provision in this case is r.2.72(10)(aa) as in force immediately before 18 March 2018. Regulation 2.72(10)(aa), which the Tribunal considers must be assessed at the time of decision, refers to occupations and their 6 digit code as specified in the relevant instrument. In concluding that the relevant instrument in this case is IMMI 17/060, the Tribunal has considered the history of the instruments relating to the specification of occupations in respect of 457 visa nominations.
At the time of this nomination, the applicable instrument was IMMI 16/059, which included the occupation of Customer Service Manager for the purposes of r.2.72(10)(aa). IMMI 16/059 was amended by IMMI 17/040, which as noted above, came into effect on 19 April 2017. The effect of IMMI 17/040 was to replace the occupational lists in Schedule 1 and 2 of IMMI 16/059 with the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL) and introduced caveats in respect of a number of occupations, including Customer Service Manager. The Tribunal acknowledges that the nomination and visa applications were refused by the Department prior to the commencement day of IMMI 17/040, however, this is of no consequence because the applicant and nominee applied to the Tribunal for review of the Department’s decisions to refuse the applications and in these circumstances, the applications are considered not to have been finally determined.
The amending instrument, IMMI 17/040 did not provide any saving or transitional provisions in respect of nominations and/or 457 visa applications that were lodged or refused by the Department prior to the commencement day. It therefore would have applied to the applicant had the review of the nomination been conducted prior to 1 July 2017. This however was not the case and during the process of review, on 1 July 2017, another instrument came into effect, namely IMMI 17/060, which was expressed to apply to all nominations made on or after 1 July 2017 or, relevant to this case, to all nominations lodged before that date which were not finally determined by 1 July 2017. As the Department’s decision to refuse the nomination is under review, the nomination application is not finally determined and the applicable instrument at the time of this decision is IMMI 17/060.
It is not in dispute that the applicant’s business has a turnover of less than AUD 1 million. As at least one of the inapplicability conditions applies, it follows that the nominated occupation of Customer Service Manager is excluded from the specification of nominated occupations. As the nominated occupation is not applicable to the person identified in the nomination in accordance with the instrument, it follows that the applicant does not meet r.2.72(10)(aa).
The Tribunal acknowledges that the applicant was refused by the Department on the basis that r.2.72(10)(f) was not met. The Tribunal has not considered this criterion because the applicant must satisfy all the requirements in r.2.72 for the nomination to be approved. As the applicant has not satisfied one of the requirements in r.2.72 for approval, namely, r.2.72(10)(aa), the nomination cannot be approved and it is therefore not necessary to consider any of the other requirements in r.2.72.
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.
R. Skaros
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 3515

26 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness