YASH FOODS PTY LTD (Migration)

[2019] AATA 2613

YASH FOODS PTY LTD (Migration) [2019] AATA 2613 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  YASH FOODS PTY LTD

CASE NUMBER:  1728425

HOME AFFAIRS REFERENCE(S):           BCC2017/532030

MEMBER:Mr S Norman

DATE:29 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2019 at 11:50am

CATCHWORDS
MIGRATION – nomination of occupation – subclass 457 - position must be genuine – not satisfied position of Cafe Restaurant Manager, as described in ANZSCO 14111 – nominee does not hold  Subclass 457 visa – no application for Subclass 457­ – amended regulations affect nomination application – no response within prescribed period – no request for extension of time ––no prescribed criteria against which nomination could be assessed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140, 359, 363
Migration Regulations 1994, Schedule 2, rr 2.72, 2.73,

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Hasran v MIAC [2010] FCAFC 40

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 Immigration and Border Protection on 25 October 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).

2. The Department delegate’s decision was lodged with the Tribunal.

3. The applicant applied for approval on 8 February 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. Additional criteria are specified in s.140GBA.

4. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) – position must be genuine.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

   Position must be genuine

7. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This 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.

8. The applicant/nominator (Yash Foods P/L) lodged the nomination application on 8 February 2017. The nominated position was for a Cafe or Restaurant Manager – ANZSCO: 14111. The delegate was not satisfied the nominated position was “what it purported to be”. That means, they were not satisfied the position was the equivalent of a Cafe Restaurant Manager, as described in ANZSCO.

9. The delegate identified the tasks nominated by the nominator for the nominated position. They also referred to the documents lodged in support of the nomination application. However, they were not satisfied the business was operating at a level that would indicate the nominated position is genuine.

10. The delegate then concluded that they were not satisfied the position associated with the nominated occupation is genuine, and consequently the applicant did not satisfy r.2.72(10)(f). Therefore, the delegate refused the nomination approval application lodged by Yash Foods P/L.

    Identification of the nominee

11. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

12. By letter dated 20 March 2019,[1] the Tribunal advised the applicant that subject to their comments the following information would be the reason or part of the reason for affirming the decision under review. That information included:

    · it is a requirement for approval of the nomination that you have identified the visa holder, applicant or proposed applicant for the visa will work on the nominated occupation. This requirement is in r.2.72(5) of the Migration Regulations 1994 as it applies to your case

    ·     a review of your file and Department records suggests that the person you identified (as the nominee) does not hold a subclass 457 (Temporary Work (Skilled)) visa and they do not have an application for a subclass 457 (Temporary Work (Skilled)) visa that is yet to be decided by the Department of Home Affairs or the Tribunal (and the Tribunal accepts this to be correct)

    ·     the Migration Amendment (Temporary Skill Shortage visa and Complimentary Reforms) Regulations 2018, commenced on 18 March 2018. As a result, the subclass 457 Visa program was repealed and closed to new applications from that date onwards

    · the subclass 482 (Temporary Skills Shortage) visa that commenced on 18 March 2018 is not compatible with the nomination application made before then, meaning that a subclass 457 (Temporary Work (Skilled)) visa holder cannot be relied upon to satisfy r.2.72(5) as it applies to your case

    [1] Tribunal - from folio 27. 

13. The applicant was then advised that this information is relevant to the review because it suggests the person identified as the proposed visa applicant does not hold, and is unable to be granted, the type of visa required to work in the nominated occupation. The applicant was invited to respond to this information in writing by 3 April 2019. The applicant was also advised that they may seek an extension of time within which to respond (no such request was made), but if no response was received they would lose any entitlement they might otherwise have under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

14. The applicant did not respond to the Tribunal within the prescribed period and they did not request an extension of time within which to respond. In these circumstances, s.359C applies and pursuant to s.360(3) 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.

15. In this case, the Tribunal has decided to proceed to a decision without taking steps to obtain further information or comment/s from the applicant. That is because no response was received to the Tribunal’s s.359A letter, and no material evidence was otherwise lodged with the Tribunal, and the applicant was made aware of the deficiencies in the application at the time of the delegate’s decision.

16. Also, the Tribunal had considered whether, in the circumstances of this case, the information or evidence that the applicant meets the requirements in r.2.72(5) was likely to be forthcoming and whether 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 has also had regard to the fact the visa application was refused by the Department on 25 October 2017 (some 18 months prior to the Tribunal decision).

17. In these circumstances, and based on all the evidence set out herein, 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. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets or could meet, the requirements in r.2.72(5). The Tribunal has decided not to delay its decision any further.

18. That being said, after considering the accepted evidence in this case, 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.

19. Accordingly, the Tribunal is satisfied there is now not any prescribed criteria against which the applicant’s nomination could be assessed and that the nomination approval must be refused.

20. For the reasons given above, as s.140GB(2) is conditional on an assessment of the prescribed criteria, the nomination cannot be approved. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Mr S Norman
    Member