Westmead Pty Ltd (Migration)

[2022] AATA 2067

Westmead Pty Ltd (Migration) [2022] AATA 2067 (10 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Westmead Pty Ltd

REPRESENTATIVE:  Ms Noelene Murray (MARN: 0000942)

CASE NUMBER:  1911021

HOME AFFAIRS REFERENCE(S):          BCC2018/2945206

MEMBER:P. Maishman

DATE:10 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 10 May 2022 at 2:30pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream –– the nomination needs to have been made under the standard business sponsorship stream – subclass 457 visa was granted based on having their nomination made under a labour agreement –– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 5.19, Schedule 2, cl 457.223

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 16 April 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 6 August 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5(a)(i) of the Regulations because the identified person was not granted their subclass 457 visa on the basis of satisfying the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018.

5. On 29 April 2022 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to its application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 May 2022. On 9 May 2022 the applicant advised the Tribunal that it did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable it to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Departments file containing the nomination approval application, documents received by the Department and correspondence between the applicant and the Department.

9. The applicant gave the Tribunal a copy of the delegates decision record. In response to the Tribunal’s invitation to provide updated information, the applicants general manager, Toni Nedanoska, provided a letter with a written submission by the representative dated 11 April 2022.

10. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5) which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Background

11. The Tribunal has had regard to the documentation and information contained on the Department and Tribunal files.

12. The applicant trades as a number of McDonald's restaurants in Western Australia. In this matter, the applicant identified Paola Guerrero Davis as its nominee for the position of Retail Supervisor (ANZSCO 621511). The applicant concedes that at the time of its nomination approval application, Ms Davis was the holder of a Subclass 457 (Temporary Work (Skilled)) granted under Subclause 457.223(2) i.e. the Labour Agreement stream.

    Visa held by identified person at time of application - reg 5.19(5)(a)

13. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

    ·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or

    ·a Subclass 482 visa in the Medium-term stream; or

    ·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or

    ·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.

14. A review of the nominee's immigration records, as outlined in the delegate's decision demonstrates that at the time of the nomination application, Ms Davis held a subclass 457 visa based on satisfying the criterion in subclause 457.223(2). That is, the subclass 457 visa was granted based on having their nomination made under a labour agreement.

15. For this nomination to be successful, Ms Davis needs to have been granted her subclass 457 visa based on satisfying the criterion in subclause 457.223(4). That is, the nomination needs to have been made under the standard business sponsorship stream.

16. The Tribunal finds that Ms Davis was granted a Subclass 457 visa granted on the basis that she satisfied the criterion in subclause 457.223(2) which relates to nominations made under a labour agreement.

17. The Tribunal finds on the information available to it that the subclass 457 visa which Ms Davis held at the time of this application was not a Subclass 457 Temporary Work (Skilled) visa granted on the basis that she satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018.

18. As Ms Davis held a Subclass 457 visa at the time the nomination application was made, the alternative requirements in subparagraphs 5.19(5)(a)(ii), (iii), (iv), (v) and (vi) are not met.

19. Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(a) is met. Accordingly, reg 5.19(4)(e) is not met.

20. For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.

21. The applicant has submitted that it intends to bring its case to the Ministers attention for consideration by the Minister pursuant to s 351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

22. The applicant has outlined that administrative changes to visa pathways had negatively impacted its ability to maintain a stable and reliable workforce.  

23. The Tribunal notes that the applicant may make its request directly to the Minister.

    DECISION

24. The Tribunal affirms the decision under review to refuse the nomination.

    P. Maishman
    Member

    
    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

    Application

    (1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

    (2)The application must:

    (a)be made in accordance with approved form 1395 (Internet); and

    (b)identify the position; and

    (c)identify a person (the identified person) in relation to the position; and

    (d)identify an occupation in relation to the position; and

    (e)identify the subclass and stream to which the nomination relates, which must be one of the following:

    (i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

    (ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

    (iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

    (iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

    (v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

    (f)be accompanied by the fee mentioned in regulation 5.37; and

    (g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.

    Approval of nomination

    (3)The Minister must, in writing:

    (a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

    (b)otherwise—refuse to approve the nomination.

    Requirements for approval—general

    (4)The requirements to be met for the nomination to be approved are as follows:

    (a)the application is made in accordance with subregulation (2);

    (b)either:

    (i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;

    (c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

    (i)hold a licence of a particular kind; or

    (ii)hold registration of a particular kind; or

    (iii)be a member (or a member of a particular kind) of a particular professional body;

    to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

    (d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

    (e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

    (f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

    (g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

    Temporary Residence Transition stream—additional requirements for approval

    (5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

    (a)at the time the application is made, the identified person holds:

    (i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

    (ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

    (iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

    (iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

    (v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

    (vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

    (b)the occupation:

    (i)is listed in ANZSCO; and

    (ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

    (c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

    (i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

    (ii)apply to the identified person in accordance with an instrument made under that subregulation;

    (d)either:

    (i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

    (ii)it is reasonable to disregard any such information;

    (e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

    (i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

    (ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

    (iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

    (f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

    (i)for a total period of at least 3 years (not including any periods of unpaid leave); and

    (ii)on a full‑time basis, with the employment being undertaken in Australia;

    (g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

    (h)the nominator:

    (i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

    (ii)is actively and lawfully operating a business in Australia;

    (i)unless it is reasonable to disregard subparagraphs (i) and (ii)—the nominator:

    (i)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (ii)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor;

    (j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

    (k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

    (l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

    (m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

    (n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

    (o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

    (i)paragraph 2.72(15)(a) did not apply; and

    (ii)references to the nominee were references to the identified person; and

    (iii)references to the person were references to the nominator;

    (p)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 identified person 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;

    (q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

    Minister may vary certain Temporary Residence Transition stream requirements

    (6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

    (7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

    (8)The Minister may, by legislative instrument, specify:

    (a)occupations for the purposes of paragraph (5)(c); and

    (b)persons who are exempt from the operation of that paragraph; and

    (c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

    (i)the nominator;

    (ii)the identified person;

    (iii)the occupation;

    (iv)the position in which the identified person is to work;

    (v)the circumstances in which the occupation is undertaken;

    (vi)the circumstances in which the person is to be employed in the position.