Jackward Pty Ltd (Migration) [2021] AATA 3163 (18 August 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Jackward Pty Ltd
CASE NUMBER:	1834140
HOME AFFAIRS REFERENCE(S):	BCC2017/4622447 
MEMBER:	Wan Shum
DATE:	18 August 2021
PLACE OF DECISION:	Sydney
DECISION:	The Tribunal affirms the decision not to approve the nomination.

Statement made on 18 August 2021 at 2:37pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – no response to tribunal’s invitation to provide current information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.72(10)(f), 2.73

CASE
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 Home Affairs on 1 November 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
2.	The applicant applied for approval of a Chef on 5 December 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 reg 2.72(10)(f). This is because the delegate did not consider that the position in the nominated occupation of Chef was consistent with the nature of the business operated by the applicant. 
4.	The applicant was represented in relation to the review by a 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 applicant is an approved sponsor and meets the requirements in reg 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. 
7.	The applicant was invited to provide up to date and current information about the business and the nominated position in writing by 5 August 2021. The applicant was also advised that they may seek an extension of time within which to respond, but if no response was received they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments. 
8.	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 nominator is not entitled to appear before the Tribunal. The effect of s 363A 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. 
9.	The request for information was correctly sent to the representative using the email address provided on review. The applicant did not provide any information with the application for review nor at any time since the application was lodged. The Tribunal considers that the applicant has had an opportunity to present information to support its application and has not done so to date. In these circumstances, the Tribunal has decided to proceed to a decision without taking steps to obtain further information or comments from the applicant. 
10.	Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The Tribunal has no current evidence before it regarding the business or its employees. It is not satisfied that the position associated with the nominated occupation is genuine and finds that the requirements of reg 2.72(10)(f) are not met.
11.	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
12.	The Tribunal affirms the decision not to approve the nomination.

Wan Shum
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.