1416570 (Migration)

[2015] AATA 3741

1416570 (Migration) [2015] AATA 3741 (26 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Regess Pty Ltd

CASE NUMBER:  1416570

DIBP REFERENCE(S):  BCC2014/1458809

MEMBER:Denise Connolly

DATE:26 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2015 at 10:41am

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 15 September 2014 to refuse 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 13 June 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). In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

3. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because he was not satisfied the applicant had identified a need for the position, or that the applicant would employ the nominee on a full-time basis for at least 2 years on the terms and conditions proposed.

4. On 9 October 2015 the Tribunal invited the applicant to appear before the Tribunal on 26 November 2015. The Tribunal asked the applicant to provide information before the hearing in relation to its assessment of r.5.19(4). On 25 November 2015 the applicant’s representative informed the Tribunal that the applicant did not wish to attend the hearing. A case officer spoke with the representative who confirmed the applicant did not wish to attend the hearing. The applicant has not provided any further information. Accordingly the Tribunal has decided to proceed to make its decision on the evidence before it.

5. The applicant was represented in relation to the review by its registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

2. When making the nomination application the applicant, trading as Zilver Restaurant, claimed to need a Restaurant Manager to work at premises in Pitt Street, Haymarket. It was proposed that the nominee would be paid a base salary of $180,000 because of his ‘extensive skills and experience in Chinese restaurant management’. The applicant claimed to employ 60 Australian employees and 6 visa holders, with payroll expenditure of $1,082,151 in the past 12 months. The applicant identified Guang Liu as the nominee. 

3. The delegate’s decision record, provided to the Tribunal by the applicant, states that the applicant provided information addressing the issue of whether there was a need to employ a paid employee to work in the position, and referred to the position holder as a Mr/ Ms Long, not the nominee. The delegate also notes the business had a nomination approved for the same position on 16 January 2014 and the applicant has not provided any justification for why the business requires another Restaurant Manager position. He also notes the organisational structure shows 70 staff on the roster. The delegate was not satisfied the applicant had demonstrated a need for the position. The delegate also had concerns about the proposed salary of $180,000, given the average salary paid to the business’ existing staff is $16,396, and the financial documentation provided recorded a profit of only $73,299 in the previous financial year. He was not satisfied the applicant had demonstrated a capacity to pay the nominee the amount proposed.

4. When inviting the applicant to the hearing the Tribunal explained that it was unable to make a favourable decision on the evidence before it. It requested that the applicant provide to the Tribunal information identifying why the applicant needs to employ a paid employee to work in the position. It also requested financial documentation. The applicant did not provide any of the documentation sought and did not take the opportunity to give evidence and present arguments as to why it meets the requirements for nomination approval.

The application is compliant: r.5.19(4)(a)

1. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and must identify a  need for the nominator to employ a paid employee to work in the position under their direct control.

2. The delegate’s decision record, provided to the Tribunal by the applicant, states that the applicant had the nomination of a Café or Restaurant Manager position approved on 16 January 2014 and there is no explanation as to why the applicant needs another Restaurant Manager position approved. The Tribunal sought information to address this concern however the applicant has not provided it.

3. The Tribunal has carefully examined all of the evidence before it. The applicant has stated in the application that it needs a Café or Restaurant Manager. However such a position was approved in January 2014. The Tribunal wished to consider the applicant’s submissions on this issue but it chose not to provide any further evidence, or attend the hearing. On the information before it, the Tribunal is not satisfied the applicant has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct.

4. Accordingly the Tribunal is not satisfied the requirement in r.5.19(4)(a) is met. Therefore the Tribunal finds r.5.19(4) is not met and it is not necessary for the Tribunal to consider the other requirements of r.5.19(4).

Conclusions

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

DECISION

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

Denise Connolly
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. The application must:

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

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

…

Direct Entry nomination

1. 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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

   (b)the nominator:

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

   (ii)      directly operates the business; and

   (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

   (d)both of the following apply:

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

   (ii)      the terms and conditions of the employee’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)       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

   (g)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; and

   (h)either:

   (i)       both of the following apply:

   (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

   (B)either:

   (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

   (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

   (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

   (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

   (D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;

   (E)the business operated by the nominator is located at that place;

   (F)a body that is:

   (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (II)located in the same State or Territory as the location of the position;

   has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).