1414078 (Migration)

[2016] AATA 3580

1414078 (Migration) [2016] AATA 3580 (21 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Absolute Trading Pty Ltd

CASE NUMBER:  1414078

DIBP REFERENCE(S):  BCC2014/857271

MEMBER:Mary-Ann Cooper

DATE:21 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 21 March 2016 at 2:06pm

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 on 29 July 2014 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 27 March 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d) of the Regulations because s/he was not satisfied on the basis of financial information provided that the applicant would employ the applicant fulltime for at least 2 years.

5. On 7 July 2015 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting it to provide information in writing demonstrating that it met the requirements of r.5.19(3). The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 21 July 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. Documents on the file demonstrate that the review applicant did not provide the information within the prescribed period and no extension was 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. The Tribunal notified the review applicant that it had lost its right to a hearing on 22 July 2015 and allowed some further time for the provision of information in support of its application, which it provided on 28 July 2015.

6. The Tribunal later received information that the applicant’s sponsorship approval had been cancelled and accordingly wrote to the applicant under s.359A of the Act inviting it to provide comments in writing on this information, which it considered would be part of the reason for affirming the decision under review. It was relevant to the Tribunal’s decision because if accepted by the Tribunal it might consider that there was adverse information known to Immigration about the nominator, which was not reasonable to disregard, and this would mean it did not meet r.5.19(3)(g) as required for the approval of the nomination. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 4 September 2015, the Tribunal may make a decision on the review without taking further steps to obtain the comments 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. The applicant responded to the invitation on 3 September 2015 providing comments in response.

7. Notwithstanding the earlier correspondence advising that the applicant had lost its right to a hearing, following the receipt of the timely response to the later s.359A invitation, on 17 November 2015,  the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 20 January 2016. The review applicant was advised that if it did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on the case without further notice. Several attempts to call the applicant’s nominated representative, its Executive Director, on the day and at the time of the hearing were unsuccessful. He later emailed the Tribunal claiming the line had ‘dropped’ and sought that the Tribunal call him again on the number provided. The Tribunal did not make a further attempt to telephone the applicant’s representative, writing to him advising that the Tribunal hearing invitation had been inadvertently sent in error and confirming the advice of 22 July 2015 that it had lost its entitlement to a hearing. In the circumstances it provided further time for the provision of any additional information. A further submission was received on 1 February 2016.

8. As noted above, as the review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear. In these circumstances, the Tribunal has proceeded to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Training commitments and obligations: r.5.19(3)(f)

11. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and to have complied with applicable obligations under Division 2.19 of the Regulations relating to training requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

12. Departmental records confirm that the applicant’s most recent sponsorship approval commenced on18 February 2014 and was cancelled on 19 August 2015. There is no evidence of any particular, specific training commitments made regarding this sponsorship.

13. As part of its approval as a standard business sponsor however, the applicant had to meet certain training requirements: r.2.59(d) and (e). The applicant/sponsor had to demonstrate recent training expenditure in accordance with specified training ‘benchmarks’ and make a commitment to maintain such expenditure over the term of sponsorship approval. This obligation is assessable on an annual basis, in the twelve month period commencing on the day on which the sponsor is approved: r.2.87B.

14. The relevant training benchmarks are specified in IMMI 13/030, which provide for the following alternatives:

    A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry-training fund, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor. 

    OR

    B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

15. As evidence of meeting its training obligations, the applicant submitted the following:

    “2012-13 : Spent $10,280 on training Australian citizens or PR (paid $6850 to approved training fund and spent $3430 on internal staff training (payroll expenses = $342,511); trained 2 recent graduates, 1 apprentice and 3 other trainees under training agreement

    2013-14: Spent $22,556 on training Australian citizens or PR (payroll expenses = 670,194): appointed Training & Evaluation Officer in March 2014; trained 1 recent graduate and 1 other trainee under training agreement.

    Nominator has spent similar amount in the year 2014-15 and is committed to meeting training requirement in the future.”

16. No documentation supporting these claims was provided. The Tribunal examined the Department’s file and notes that the nomination approval application indicated a payroll of $342,511 for the previous 12 months and training expenditure of $3430 as well as a contribution of $6850 to the Sydney TAFE Institute industry-training fund. The application also claims that there are 14 Australian and 7 foreign employees. The file also includes a copy of a receipt from the Sydney TAFE Institute for $6850 dated 29 August 2013.

17. In order to assess whether or not the applicant has complied with applicable obligations relating to training expenditure during the period of its most recent sponsorship approval, the Tribunal needs to know the applicant’s payroll. While figures have been provided for previous years, none has been provided for 2014/15. In its response to the Tribunal’s invitation, the applicant’s executive director has made several assertions but they are not supported by objective evidence such as receipts or other records. In particular, in relation to 2014/15 the Tribunal has neither payroll figures nor any supporting evidence of training and expenditure. As noted above, the applicant’s executive director has asserted that a ‘similar amount’ was spent in 2014/15.

18. Other than this assertion, there is nothing before the Tribunal which demonstrates the applicant’s payroll or its training expenditure for the relevant period.

19. In addition to the obligations imposed by r.2.87B,  if the nominator was lawfully operating a business in Australia at the time of the standard business sponsorship or variation approval, all records showing that the person has complied with requirements relating to the training obligation in 2.87B must be kept in accordance with a separate record keeping obligation (r.2.82). No records demonstrating the applicant’s compliance with the training requirements have been provided to the Tribunal or are evident on the materials before it.

20. For the above reasons, the Tribunal is not satisfied that the applicant has complied with its obligations under Division 2.19 relating to its training requirements during the period of its most recent approval as a standard business sponsor: r.5.19(3)(f)(i).

21. As noted above, these requirements may be disregarded if it reasonable to do so: r.5.19(3)(f)(ii).

22. No material or any claim in this regard has been put to the Tribunal. The Tribunal has considered the Department and Tribunal files and is not satisfied that there is anything in the applicant’s circumstances that would warrant a finding that it is reasonable to disregard the requirements of this regulation. The Tribunal is therefore not satisfied that there is any reason to disregard the training requirements of r.5.19(3)(f)(i): r.5.19(3)(f)(ii).

23. Accordingly, the requirements in r.5.19(3)(f) are not met.

24. As noted above, if all the requirements of r.5.19(3) are not met, the nomination approval application must be refused: r.5.19(5).

    CONCLUSION

25. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

26. The Tribunal affirms the decision under review to refuse the nomination.

    Mary-Ann Cooper
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employee nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:         

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position 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 in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.