Huo v Minister for Immigration and Multicultural Affairs [2024] AATA 352 | Case summary | Zoe

CTHAATA

Huo v Minister for Immigration and Multicultural Affairs

[2024] AATA 352

Administrative Appeals Tribunal of Australia|2024-01-05

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At a glance

AI case summary

Result

defendant. The Tribunal affirmed the decision not to approve the nomination.

Key principles

The Tribunal's decision to affirm the refusal of the nomination rests on three independent grounds: (1) failure to satisfy reg 2.72(8)(b) because the nominated occupation (ICT...
The phrase 'applies to the nominee' in reg 2.72(8)(b) bears its ordinary meaning: the occupation nominated by the applicant must be the occupation for which the nominee intends...
The 'genuine position' requirement in reg 2.72(10)(a) requires a qualitative assessment comparing the specific tasks performed and described against the occupation nominated as...
Where an applicant fails to respond to a s 359(2) invitation to provide updated information, and no extension of time is sought or explanation provided, the Tribunal may proceed...

Issues before the court

Whether the nominated occupation 'applies to the nominee' for the purposes of reg 2.72(8)(b) of the Migration Regulations 1994 where the nominee...
Whether the position associated with the nominated occupation is 'genuine' for the purposes of reg 2.72(10)(a)

Plain English Summary

A company called NEOSTECH tried to nominate a worker, Mr Chang, for a visa to work as an 'ICT Customer Support Officer'. However, Mr Chang applied for his visa saying he would work as a 'Computer Network and Systems Engineer'—a different, higher-skilled job. The company also failed to provide evidence showing what Mr Chang would actually do day-to-day, or proof that he would work full-time. When the Tribunal asked for more information, the company didn't respond. The Tribunal decided the nomination couldn't be approved because: (1) the job the company nominated didn't match the job Mr Chang applied for; (2) there wasn't enough detail to show the support officer job was genuine; and (3) there was no proof the job would be full-time.

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Judgment (46 paragraphs)

[1]

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.

Parties

Applicant/Plaintiff:

Huo

Respondent/Defendant:

Minister for Immigration and Multicultural Affairs

Cases Cited (7)

NEOSTECH PTY LTD (Migration) [2024] AATA 352 (5 January 2024)

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v 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

Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. The phrase is not defined and in the absence of a hearing the Tribunal is assisted in its task to help determine what might be 'genuine' from what information is available and from court authority which has frequently considered the issue.
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, by comparing specific tasks performed and described, and as outlined by ANZSCO, against the occupation nominated, in order to determine whether it was genuine. This means an assessment of not only whether the position in question actually exists, but also whether that position really is what it purports to be.
The Courts have confirmed that the determination necessarily requires a qualitative analysis of the position, and a comparison of that with the occupation which has been nominated by the proposed sponsor.[14]
In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The nomination application asserts that the nominee's employment as an ICT Customer Support Officer- Network Support Technician[15] commenced on 1 October 2020. The applicant's offered employment contract on the available information, although executed on 25 January 2023 by the parties, has left the commencement date blank, intending that the employment will only commence when a related visa is approved.
No agreement or document such as a payslip is provided evidencing the nominee's claimed commencement date in October 2020 or his current employment at the time of this review (2024). A certificate from a previous employer, IRS & DMGT Pty Ltd, dated 3 March 2020, is produced and which refers to the nominee then employed since 1 October 2019 and "currently".
The Tribunal finds the evidence of full time employment is unsatisfactory and does not establish that the nominee's employment by the applicant will in fact be "full time", based only on the provision in the proposed employment contract. This is because his current employment is unknown, which includes his hours of work, salary and performance obligations for the applicant, and because there is no financial information produced which demonstrates wages paid for work performed, the hours worked, what that work entails and to corroborate where and when it is performed or will be performed.

AI Analysis

Outcomedefendant

Disposition:

The Tribunal affirmed the decision not to approve the nomination.