Will World Australia Pty Ltd (Migration)

[2019] AATA 1164

Will World Australia Pty Ltd (Migration) [2019] AATA 1164 (26 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Will World Australia Pty Ltd

CASE NUMBER:  1514329

DIBP REFERENCE(S):  BCC2015/2404900

MEMBER:  Mary Sheargold

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 April 2019 at 10:39 am (VIC time)

DATE OF WRITTEN RECORD:               13 May 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review

Statement made on 13 May 2019 at 2:16pm

CATCHWORDS
MIGRATION – nomination – not a genuine position – customer service manager – subject to caveat 19 – business does not have turnover of at least AU$1,000,000 – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, Schedule 2, rr 2.72, 2.73

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister of Immigration and Border Protection on 19 October 2015, to refuse to approve the applicant’s nomination under section 140GB of the Migration Act 1958 (the Act) and regulation 2.72 of the Migration Regulations 1994 (the Regulations).

1. At the hearing on 26 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. The applicant applied for approval on 19 August 2015. 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 the nomination by a person. These criteria are extracted in the attachment to the decision record that you will receive later. The nomination application was made from

   23 November 2013 for additional criteria as specified in s.140GBA.

1. 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 found that the nominated position was not genuine. The applicant appeared before the Tribunal on 30 May 2017 and again today, on 26 April 2019, to give evidence and present arguments. The Tribunal also received oral evidence today from the nominee, Ms Kelly Johanna Rodriguez Moreno. The Tribunal hearings were conducted with the assistance of an interpreter in the Spanish and English languages.

1. For the following reasons, the Tribunal has decided to affirm the decision under review, to refuse the nomination. 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 sponsor and meets the requirements in r.2.72. The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, for this liability only arises from applications made from 12 August 2018. In addition, the nominations made from 23 November 2013, s.140GBA must be met.

1. Subclause 2.72(10)(aa) of the Regulations, as it applies in this case, requires that the nominated occupation and six-digit code correspond to an occupation and six-digit code specified in instrument, IMMI 17/060 and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances, this instrument may also require the nomination and occupation to be supported in writing to the Minister by specified organisations before the nomination can be approved.

1. The nominated occupation in this case is customer service manager.  The Tribunal notes that the occupation appears in the list of occupations in IMMI 17/060 but is subject to several caveats.  Relevantly, caveat 19 requires that the nominating business to have a turnover of at least AU$1,000,000. On 1 April 2019, the applicant provided the Tribunal with updated financial information for the financial year ending on 30 June 2018 and 30 June 2017. The Tribunal notes that the financial statements show the applicant does not have a turnover of at least AU$1,000,000.

1. At the hearing, the Tribunal invited Mr Moreno, the sole director of the applicant, to make submissions regarding the applicant’s annual turnover. Mr Moreno advised the Tribunal the projection to the applicant’s business show that the AU$1,000,000 turnover should be met by 2021 and that he had been hampered from growing the business more quickly because

the nominee has not been able to work full-time in the role of customer service manager since the time the application was lodged with the Tribunal.

1. The Tribunal finds that the applicant does not have a turnover of at least AU$1,000,000 as required by IMMI 17/060 and therefore, the occupation of customer service manager is not specified in this case.  For these reasons, the requirement in r.2.72 (10)(aa) is not met.

1. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for a nomination to be approved. Accordingly, the decision under review must be affirmed.

1. This decision is made at 10.39 am on 26 April 2019.

DECISION

1. The Tribunal affirms the decision under review.

Mary Sheargold Member