1419743 (Migration)

[2015] AATA 3740

1419743 (Migration) [2015] AATA 3740 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MUDGE VALLI ENTERPRISES PTY LTD ATF MUDGE VALLI FAMILY TRUST

CASE NUMBER:  1419743

DIBP REFERENCE(S):  BCC2014/1672625

MEMBER:Rania Skaros

DATE:24 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2015 at 10:02am

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 12 November 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 8 July 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 Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii) of the Regulations because the delegate was not satisfied that the applicant had a genuine need to employ a paid employee to work in the position. The delegate was also not satisfied that the tasks to be performed in the nominated position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3.

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

6. On 5 November 2015, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information to demonstrate it meets the requirements of r.5.19 for approval of a nomination of a position in Australia, in writing. In its letter the Tribunal stated that the applicant had indicated in the application that it was seeking to meet the requirements of r.5.19(4) (Direct Entry), and provided examples of the types of information the applicant could provide to demonstrate the requirements of r.5.19(4).

7. The invitation was sent by email to the authorised recipient at the last email address provided in connection with the review and advised that, if the information was not provided in writing by 19 November 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.

8. The review applicant has not provided the information within the prescribed period and no extension has been 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 has decided to proceed to decision without taking further steps to obtain the information.

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 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.

    Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

11. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister and certain specified training benchmarks will be met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

12. In the application, the applicant did not claim to satisfy, nor did it provide any information in relation to meeting the requirements in relation to training benchmarks. Accordingly, the Tribunal is not satisfied that the applicant meets r.5.19(4)(h)(i). The Tribunal has accordingly assessed whether they meet the requirements of r.5.19(4)(h)(ii).

13. Information before the Tribunal indicates that the position is located in Wandoan  Queensland, which is regional Australia.

14. The Tribunal notes that the application was made on 8 July 2014 and the documents submitted with that application are now more than 16 months old. The applicant was invited to provide current evidence to demonstrate that it still has a genuine need to employee a paid employee to work in the position under its direct control, however the applicant did not provide the requested information. Given the lack of current evidence before it, the Tribunal is not satisfied, at the time of its decision, that the applicant has a genuine need to employ a paid employee to work in the position under its direct control, and finds that the requirements of r.5.19(4)(h)(ii)(B) are not met.

15. Also, the applicant nominated the position of Cook (351411). The delegate in this case found the tasks to be performed in the position to be more consistent with the occupation of Kitchenhand (Unit Group 8513), which is an ANZSCO skill level 5.

16. The Tribunal considered for itself the information provided to the Department, including the position description, and shares the delegate’s concerns regarding the nature of the tasks to be performed in the position. The Tribunal notes that the applicant has not provided any information or submissions to the Tribunal addressing the reasons for refusal. Further, the Tribunal invited the applicant to provide current evidence about the position, however, it did not provide. Given the lack of current evidence regarding the tasks to be performed in the position, the Tribunal is not satisfied that the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3 as required by r.5.19(4)(h)(ii)(D).

17. Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii).

18. As the applicant does not meet the requirements of r.5.19(4)(h)(i) or r.5.19(4)(h)(ii), the Tribunal finds that r.5.19(4)(h) is not met.

19. 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

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

    Rania Skaros
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer 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.

    …

    Direct Entry nomination

    (4)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).