1413381 (Migration) [2015] AATA 3624 (12 November 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	AST Protective Services Pty Ltd
CASE NUMBER:	1413381
DIBP REFERENCE(S):	BCC2014/1164696 
MEMBER:	Antonio Dronjic
DATE:	12 November 2015
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to approve the nomination.

Statement made on 12 November 2015
at 10:57am

statement of decision and reasons
application for review
1.	This is an application for review of a decision made by vpa delegate of the Minister for Immigration on 15 July 2014 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 9 May 2014. 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 visa 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 r.2.72(10(f) because the delegate found that that the position associated with the nominated occupation is not genuine.
4.	The applicant applied to the Tribunal on 4 August 2014 for review of the delegate’s decisions. With its application, the applicant provided a copy of the primary decision record. The applicant was represented in relation to the review by its registered migration agent. 
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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2). 
7.	Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
8.	A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund. 
9.	In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in the relevant instrument..
10.	These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 15/050; r.2.72(10)(AB).
11.	The nominated occupation in the nomination application is Customer Service Manager. The sponsoring business is AST Protective Services Pty Ltd.
12.	On 24 August 2015 the Tribunal sent a letter to the applicant and its authorised representative which contained a request to the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 2.72 of the Migration Regulations. The request was made pursuant to section 359(2) of the Act.
13.	The section 359(2) invitation was sent to the applicant and advised that, if the information was not provided in writing by 7 September 2015, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
14.	On 7 September 2015, the applicant’s representative wrote to the Tribunal advising that he received written instruction from the sponsoring business to withdraw the review application and that, as of the time of writing he is not in possession of a signed ‘Withdrawal of Application’ form, which has been requested from the client.
15.	The Tribunal officer contacted the applicant’s representative on several occasions inquiring if the applicant’s representative received signed Withdrawal of Application form from his client. As of the day of this decision, the Tribunal did not receive the form despite the advice received from the applicant’s representative that the withdrawal form is ‘on its way’.
16.	The applicant had not provided the information within the prescribed period and no extension had been sought or granted. 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.
17.	The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.
18.	In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.
19.	The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets all of the requirements of r.2.72 is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.
20.	The Tribunal has had regard to the fact that the nomination application was refused by the Department on 15 July 2014. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for approximately 15 months of the reasons for the nomination application refusal. The Tribunal notes that the applicant has had the benefit of professional advice from a registered migration agent regarding the application.
21.	The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 2.72 of the Migration Regulations. Yet, the applicant has failed to provide requested information within the prescribed period set for this purpose. The Tribunal notes that the sponsoring business is not prevented from lodging a new business nomination application with the Department.
22.	In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further.  The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act.
23.	The Tribunal has no contemporary information before it concerning whether or not the applicant presently employs Australian citizens or permanent residents performing equivalent work at its workplace at the same location. 
24.	The Tribunal must by necessity consider contemporary information and evidence concerning market conditions in its task of determining whether the terms and conditions offered to the nominee are no less favourable than those terms that would be provided or are provided to Australian citizens or permanent residents performing equivalent work in the applicant's workplace at the same location. 
25.	For this reason, the Tribunal is unable to give weight to information concerning rates of pay dating to April 2014, as provided to the Department. By reference to the information presently before it, the Tribunal is not satisfied that the conditions of employment for the nominee will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the applicant's workplace at the same location. The Tribunal accordingly finds that the applicant has failed to satisfy the requirements of r.2.72(10)(c).
Position must be genuine
26.	Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
27.	The Tribunal must by necessity consider contemporary information related to the requirements of r.2.72 (10(f). Based on the evidence before it, the Tribunal is not satisfied that the position associated with the nomination is a genuine position. 
28.	For these reasons the requirements of r.2.72(10)(f) are not met.
29.	The Tribunal must approve the nomination if all of the applicable requirements in r.2.72 have been met: s.140GB(2). The Tribunal has found that the applicant does not meet r.2.72(10)(c) and r.2.72(10(f). As the provisions of r.2.72 are cumulative and the applicant is required to meet all relevant subparagraphs, the Tribunal therefore finds that the applicant does not meet the applicable criteria prescribed in r.2.72 for the nomination to be approved. 
30.	For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
decision
31.	The Tribunal affirms the decision not to approve the nomination.

Antonio Dronjic
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.
(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.
Note   The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).
(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
(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 that:
(i)	are provided; or
(ii)	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.