THJ Group Pty Ltd (Migration)

[2019] AATA 2290

THJ Group Pty Ltd (Migration) [2019] AATA 2290 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THJ Group Pty Ltd

CASE NUMBER:  1804569

HOME AFFAIRS REFERENCE(S):           BCC2017/1116586

MEMBER:Alan McMurran

DATE:9 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 May 2019 at 2:58pm

CATCHWORDS
MIGRATION – nomination – Cook – Indian restaurant – TSS Regulations – nominee not eligible for TSS 482 visa – nomination approval application lodged before 18 March 2018 – Subclass 482 visa not compatible with nomination application made before 18 March 2018 – Subclass 457 visa repealed from 18 March 2018 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 245AR(1), 359, 360
Migration Regulations 1994 (Cth), rr 2.72, 2.73

CASES
B & G Trading Pty Ltd AAT [2018]

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 9 February 2018 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).

2. The applicant applied for approval on 22 March 2017. 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.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy sub-clause 2.72(10) (f) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.

4. The applicant was represented in relation to the review by its registered migration agent.

   Background

5. The applicant is an Australian company carrying on business as an Indian restaurant and trading as Rasoee Griha, from premises at Five Dock in Sydney. The applicant sought approval for a nomination of a Cook (ANZSCO 351411). The nominee proposed was identified as Praveen Kumar, a 29-year-old Indian citizen.

6. The applicant provided information to the Department with the application providing details as to the financial statements of the company, a submission as to a genuine need for the employee, and a description of the business. A job advertisement on Seek was also produced. The applicant provided copies of responses to the Seek advertisement.

7. The Department wrote to the applicant on 15 July 2017 requesting more information and providing a checklist in that regard. In response, the Department received a copy of a signed contract of employment between the applicant and the nominee.

8. Following the decision by the delegate on 9 February 2018, the applicant sought this review in an application filed in the Tribunal on 21 February 2018. The applicant provided a copy of the delegate’s decision, and attached further documents including photographs of the restaurant, job advertisements for the position of cook and a submission dated 14 August 2017.

9. The Tribunal acknowledged receipt of the application on 22 February 2018. The Tribunal records verify from the Department that the applicant is an approved sponsor under an agreement in place for the period from 10 August 2017 to 9 August 2022.

10. Since lodgement of the application and the additional documents referred to above, there has been no further communication from the applicant.

11. The Tribunal wrote to the applicant on 18 March 2019, under section 359A of the Act setting out particulars which the Tribunal considered would be the reason (subject to any comments or response) or a part of the reason for affirming the decision under review.

12. In particular, the Tribunal invited the applicant to comment upon the information before it stating that as r.2.72 (5) applied to the application, Departmental records suggested that the person identified by the applicant as the visa holder, applicant or proposed applicant for the visa who will work in the nominated occupation, does not hold a Subclass 457 (Temporary Work (Skilled)) visa. Also the person identified does not have an application for a Subclass 457 (Temporary Work (Skilled)) that is yet to be decided by the Department of Home Affairs or the Tribunal. The Tribunal letter referred to the Subclass 482 TSS visa program that commenced on 18 March 2018, and which is not compatible with a nomination application made prior to that date. A visa applicant making application after 18 March 2018, cannot relate that application to a nomination made prior to that date.

13. The determination of nominations made pursuant to r.2.72 prior to 18 March 2018 but not yet resolved, and where a proposed applicant for a subclass 457 visa did not apply for the visa on the basis of the nomination before 18 March 2018, was the subject of a guideline decision by the Deputy President of the Tribunal on 31 August 2018[1].

    [1] B & G Trading Pty Ltd AAT [2018]

14. The decision found that there was no temporal limitation on the nominee bringing an application for a visa, and that there was no restriction which might “preclude the Minister or the tribunal in these proceedings, from approving a nomination that was made before 18 March 2018”.[2] The decision further found that “the amended r.2.72 only applies to a nomination made under s.140GB (1)(b) where the sponsor nominates a proposed occupation in relation to a nominee who is the holder of a subclass 457 visa, a holder of a subclass 482 visa or is an applicant or a proposed applicant for a subclass 482 visa.”[3]

    [2] Ibid at par 64

    [3] Ibid at par 86

15. The decision finally determined that the regulation 2.72 (as amended)” does not apply to nominations which were not finalised as at 18 March 2018 where there was a proposed applicant for a subclass 457 visa but no such application had been (made)by 18 March 2018”.[4]

    [4] Ibid at par 92

16. The applicant was invited to respond by 1 April 2019 to the Tribunal’s letter referring to the above, and the effect of the commencement of the TSS Regulations[5] on 18 March 2018. The Tribunal’s letter drew attention to the fact the nominee is not the holder of a subclass 457 visa and has not made an application for a subclass 457 visa yet to be decided by the Department or the Tribunal. The Tribunal did not receive any response.

    [5] Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“TSS Regulations”)

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The applicant was advised that The TSS Regulations commenced 18 March 2018. The Subclass 457 visa program was repealed and closed to new applications from that date onwards.

19. The Subclass 482 (Temporary Skills Shortage) visa that commenced on 18 March 2018 is not compatible with a nomination application made before then, meaning that a Subclass 482 (Temporary Skills Shortage) visa holder cannot be relied upon to satisfy r.2.72(5), as it applies to the present nomination application proposing a 457 visa nominee.

20. The Tribunal finds and is satisfied that the proposed nominee does not hold a 457 visa, and is unable to be granted the type of visa (TSS 482) now required for working in the nominated occupation. The Tribunal is satisfied that nominee has not made any application for a visa.

21. The Tribunal notes that following its letter requiring response by 1 April 2019, an extension of time was not sought or granted, and the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s views on the information and that they would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.Section.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.

22. The Tribunal considered whether the information or evidence that the applicant provided meets the requirements in r.2.72 (5) and if the applicant has had a fair opportunity to provide the relevant information or documents, and the significance of the information or documents to the applicant. The Tribunal is satisfied that the applicant has had a fair opportunity to provide relevant information, including response to the letter under section 359A.The Tribunal has decided to proceed to a decision without taking steps to obtain further information or comment/s from the applicant.

23. The Tribunal is satisfied the nomination approval application was for a proposed occupation; that the nomination approval application was made/lodged before 18 March 2018; that the nomination approval application was in relation to a proposed applicant for a Subclass 457 (Temporary Work (Skilled)) visa; and that there was now no (outstanding) proposed visa applicant who had applied for a Subclass 457 (Temporary Work (Skilled)) visa before 18 March 2018.

24. Accordingly, the Tribunal is satisfied there are not any prescribed criteria against which the applicant's nomination could be assessed. The Tribunal refuses the nomination approval.

25. 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

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

    Alan McMurran
    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)is any of the following:

    (i) a standard business sponsor;

    (ii) a person who has applied to be a standard business sponsor;

    (iii) a party to a work agreement (other than a Minister);

    (iv) a party to negotiations to a work agreement (other than a Minister); and

    (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.