Druvegas Pty Ltd (Migration) [2024] AATA 3155 (26 August 2024)

Last Updated: 5 September 2024

Druvegas Pty Ltd (Migration) [2024] AATA 3155 (26 August 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Druvegas Pty Ltd

REPRESENTATIVE: Mr Andrew Topalovic (MARN: 2014142)

CASE NUMBER: 2206234

HOME AFFAIRS REFERENCE(S): BCC2022/204797

MEMBER: Jade Murphy

DATE: 26 August 2024

PLACE OF DECISION: Melbourne

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

Statement made on 26 August 2024 at 11:32am

CATCHWORDS

MIGRATION – approval of a nomination – Medium-term stream – position of Chef – genuine position – nominee working for the applicant part time – tasks of the position correspond to nominated occupation – no supervisory role – limited evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 140, 360
Migration Regulations 1994, rr 2.72, 2.73

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 8 April 2022 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 on 9 February 2022. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific 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. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r 2.72(10(a) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
4. On 22 July 2024, the Tribunal wrote to the applicant and invited its representative to give oral evidence and present arguments at a hearing scheduled for 26 August 2024.
5. Two hearing reminders were sent via SMS to the applicant’s nominated mobile number on 19 August 2024 and 23 August 2024.
6. No one appeared on behalf of the applicant before the Tribunal on the day and at the scheduled time and place. No satisfactory reason for the non-appearance has been given.
7. The Tribunal has 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.
8. In doing so, the Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs^[1] and Manna v Minister for Immigration and Citizenship^[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li^[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh^[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection^[5] where analogous issues were discussed.
9. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in r 2.72 of the Migration Regulations is 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.
10. The Tribunal has had regard to the fact that the application was refused by the Department on 8 April 2022 because the delegate was not satisfied that the position associated with the nominated occupation is genuine. 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 over two years of the reasons for the visa refusal.
11. In these circumstances, and for the reasons set out in this decision record, 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 is not disposed to delaying the making of a decision indefinitely.
12. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that r 2.72 can be met.
13. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the criteria for approval of the nomination.

Position must be genuine and full-time

15. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement 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. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
16. As set out in the primary decision record, a copy of which was provided to the Tribunal by the applicant, this is the reason the nomination was refused. The delegate considered the information provided and was not satisfied that the nominated position of Chef aligns with the ANZSCO description of the occupation.
17. The delegate set out the ANZSCO definition in their decision and noted that it included leadership, management, and mentoring duties for those in less-experienced roles such as Cooks.
18. The delegate stated that they considered the information provided by the applicant including the position description, organisational chart, employment contract and genuine position statement. The delegate acknowledged that some duties to be performed by the nominee are consistent with the nominated occupation, however the delegate was not satisfied that most tasks associated with the nominated occupation would be performed by the nominee because there are no Cooks, Kitchen hands or wait staff employed by the business. The delegate considered the nominee to be in a role more aligned with the occupation of Cook.
19. The delegate also noted that the advertisements for the nominated position placed for labour market testing purposes requested that applicants hold a Certificate III in Commercial Cookery and one year experience which aligns with the skill level for the position of Cook, and not Chef.
20. The delegate further noted that the applicant’s food menu appeared simple in nature.
21. For these reasons, the delegate was not satisfied that the majority of tasks to be performed in the nominated position are at the skill or responsibility level commensurate with the nominated position of Chef. As a result, the delegate was not satisfied that the position associated with the nominated occupation is genuine.
22. The Tribunal has had regard to the documents provided to the Department on application, many of which were referred to in the delegate’s decision, and in addition the documents provided to the Tribunal on review, which include:
    • Photographs of the business premises
    • Organisational Chart
    • Food Premises registration
    • ASIC and ABN registration
    • Sponsorship Approval
    • Accounting statements
    • Sample Menu
    • Nominee’s passport
23. The Tribunal has considered the information provided and has the same concerns regarding the nominated position as expressed by the delegate in the primary decision record. The Tribunal notes it has no updated submissions regarding the genuineness of this position as of 2024 and finds that the information provided does not address its concerns in this regard.
24. The Tribunal has invited the applicant to provide information regarding its ability to meet the regulatory criteria on 10 May 2024 and although it received the abovementioned documents, no specific submissions regarding this criterion was made. Further, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments however no appearance was made.
25. The Tribunal considers it has outdated but also insufficient evidence before it to be satisfied of the genuineness of the nominated position.
26. For these reasons the requirements of reg 2.72(10) are not met.
27. As the applicant does not meet one criterion for the approval of this nomination, it has not gone on to consider the remaining criteria for the approval of this nomination.
28. 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

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

Jade Murphy
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

(1) This regulation applies in relation to a person who:

(a) is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

(iii) ...

(iv) ...

(b) under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;

(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

(2) For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

(3) The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

(4) 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.

(5) The Minister is satisfied that:

(a) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

(b) ...

(5A) The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

(6) If the nominee holds:

(a) a Subclass 457 (Temporary Work (Skilled)) visa; or

(b) a Subclass 482 (Temporary Skill Shortage) visa;

the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

(7) However, the Minister may disregard the fact that one 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.

(8) The Minister is satisfied that:

(a) the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

(ii) ...; and

(b) the occupation applies to the nominee in accordance with the instrument or work agreement.

(9) The Minister may, by legislative instrument, specify occupations and, for each occupation:

(a) whether the occupation is:

(i) a short term skilled occupation; or

(ii) a medium and long term strategic skills occupation; and

(b) either:

(i) the 6-digit ANZSCO code for the occupation; or

(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

(c) if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

(d) any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

(i) the person who nominated the occupation;

(ii) the nominee;

(iii) the occupation;

(iv) the position in which the nominee is to work;

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

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

(10) The Minister is satisfied that the position associated with the occupation is:

(a) genuine; and

(b) a full-time position.

(10A) However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

(11) If:

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the person is not an overseas business sponsor; and

(c) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

the Minister is satisfied that:

(d) the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

(e) the person will give the Minister a copy of the contract signed by the employer and the nominee.

(12) If:

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the person is an overseas business sponsor; and

(c) the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

the Minister is satisfied that:

(d) the nominee will be engaged only as an employee under a written contract of employment by the person; and

(e) the person will give the Minister a copy of the contract signed by the person and the nominee.

(13) The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) ...

(14) If:

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

(c) the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

the person has provided evidence to the Minister that the nominee satisfies:

(d) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

(e) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

(15) Subject to subregulation (16), if:

(a) the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

(b) the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

the Minister is satisfied that:

(c) the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

(d) the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

(e) the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

(f) the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

(g) either:

(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

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

(16) However:

(a) the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

(ii) it is reasonable in the circumstances to do so; and

(aa) the Minister may disregard the criterion in paragraph (15)(e) if:

(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and

(b) the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

(17) The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

(18) If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

(a) 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 nominee 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; and

(b) if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

(19) ...

---

^[1] [2002] FCA 617
^[2] [2012] FMCA 28
^[3] [2013] HCA 18 (8 May 2013)
^[4] [2014] FCAFC 1 (4 February 2014)
^[5] [2014] FCA 915 (28 August 2014)