1506550 (Migration)

[2016] AATA 4506

1506550 (Migration) [2016] AATA 4506 (7 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Koomen & Co Pty Ltd ATF Koomen Family Trust

CASE NUMBER:  1506550

DIBP REFERENCE(S):  BCC2015/130662

MEMBER:Alison Mercer

DATE:7 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 07 October 2016 at 2:26pm

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 7 May 2015 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, Koomen & Co Pty Ltd (ATF the Koomen Family Trust), applied for approval on 13 January 2015. 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) of the Regulations because the occupation nominated by the applicant did not have the same 4 digit Unit Group code in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary as the occupation carried out by the nominated subclass 457 visa holder. The delegate noted that the nominee nominated by the applicant, Mr Maheshkumar Jayantilal Prajapati, had been employed by the applicant as the holder of a subclass 457 visa since 16 January 2013 in the occupation of Nursery Person (ANZSCO code 362411). However, the nominated occupation by the applicant in the present nomination application for the nominee was Flower Grower (ANZSCO code 121212). As these did not match, the delegate found that the applicant did not satisfy r.5.19(3)(a)(iii)(B) and thus did not meet r.5.19(3) as a whole. The delegate further found that the applicant had not made any claims in relation to r.5.19(4). Accordingly, the applicant’s nomination application was refused.

5. The Tribunal received a review application on 13 May 2015.  It was lodged on behalf of the applicant by one of its directors, Mr Leo Koomen.  The review application was accompanied by a range of documents, including:

   ·letter from Mr Koomen dated 15 January 2015, in which he confirmed that the nominee had been employed with the applicant business since 8 August 2011, and as the holder of a subclass 457 visa since January 2013.  The nominee’s duties were general nursery work related to the production of various types of flowers, including planting bulbs, weeding, flower harvesting, bunching etc.  He also supervised the back packer workers used by the business at various times during the year;

   ·PAYG summary statement for the nominee for the 2013/14 financial year;

   ·employment agreement between the applicant and nominee signed on an unspecified date in 2015, listing the nominee’s title as Supervision & Training of Casual Employees;

   ·financial statements for the applicant for the 2013/14 financial year;

   ·copy of the delegate’s decision; and

   ·email from Mr Koomen to the Tribunal dated 9 June 2015 stating that it appeared that he filled in the wrong details as compared with the subclass 457 visa application.  This was not pointed out to him, and the Department simply refused the nomination application. Mr Koomen stated that the nominee was still working as the holder of a subclass 457 visa and would continue to be employed if the Tribunal case was successful.

6. The matter was constituted to a Tribunal Member on 7 September 2016. 

7. On 12 September 2016, the Tribunal wrote to Mr Koomen on behalf of the applicant pursuant to s.359(2) of the Act, to invite him to provide any additional information demonstrating that his business met all relevant criteria in r.5.19(3), including, but not limited to, the criteria which the Department found was not satisfied. The Tribunal noted that the information provided should be updated and in addition to any information already provided to the Department or Tribunal. The Tribunal emphasised, for the sake of clarity, that the information requested relates to each separate subparagraph of r.5.19(3) and information should be provided in relation to each separate criterion. The Tribunal set out the contents of r.5.19(3) in its entirety for reference, and a related written instrument relating to the training benchmark requirements that the applicant had to meet. It requested that the applicant provide the information by 26 September 2016, noting that an extension could be requested if there were good reasons for one, but that the request should be made prior to 26 September 2016. The Tribunal also advised that if the information was not provided by the due date (or the extended due date if an extension were granted), then the applicant would lose its entitlement to a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the requested information.

8. The Tribunal did not receive any response to the above letter by the due date, and has not received any information or a request for an extension of time, as at the date of this decision.  The Tribunal is satisfied that the letter was sent by email to the nominated email address provided by Mr Koomen for the applicant, and that there was no evidence in the Tribunal’s electronic records that it was not delivered.

9. The applicant has not provided the information the Tribunal invited it to provide. In the circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit the applicant to appear: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where the Tribunal’s letter was sent to the nominated email address for correspondence for the applicant and there is no evidence that the email was unable to be delivered - the Tribunal has decided to proceed to a decision without taking further steps to obtain the information sought in the Tribunal’s letter dated 12 September 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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. It follows that if one is not met, then the nomination cannot be approved.

    The application must be compliant: r.5.19(3)(a)

12. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

13. From its review of the nomination application lodged by the applicant with the Department, the Tribunal is satisfied that it was made on the approved form, accompanied by the prescribed fee and was not required to provide written certification relating to conduct that contravenes s.245AR(1) as the nomination application was made before this requirement was introduced. The Tribunal finds that this meets r.5.19(3)(a)(i).

14. The Tribunal is satisfied that the nomination identifies a person who holds a subclass 457 visa granted on the basis of satisfying cl.457.223(4) – that person being Mr Maheshkumar Jayantilal Prajapati. The Tribunal finds that this meets r.5.19(3)(a)(ii).

15. Subregulation 5.19(3)(a)(iii) contains 2 subparagraphs. Subparagraph (A) requires that the nomination identifies an occupation, and that that occupation is listed in ANZSCO.  The Tribunal is satisfied that this subparagraph is met, as the applicant identified the occupation of Flower Grower in the nomination, and this is listed in ANZSCO (code 121212). 

16. Subparagraph (B) requires that the occupation identified in the ANZSCO must also have the same 4 digit occupation unit group code as the occupation carried out by the holder of the subclass 457 visa.

17. Based on the material before it, including the information contained in the delegate’s decision (a copy of which was provided to the Tribunal by Mr Koomen on behalf of the applicant), the Tribunal is satisfied that the subclass 457 visa holder (Mr Prajapati) was granted that visa on the basis of his occupation being Nursery Person (ANZSCO code 362411). While this occupation is listed in ANZSCO, the Tribunal finds that it does not have the same 4 digit occupation unit group code as Flower Grower. The ANZSCO dictionary indicates that the 4 digit occupation unit group code for Flower Grower is Unit Group 1212 (Crop Farmers), while the 4 digit occupation unit group code for Nursery Person is Unit Group 3624 (Nursery Persons). Accordingly, the Tribunal finds that r.5.19(3)(a)(iii)(B) is not met.

18. The Tribunal notes the email from Mr Koomen to the Tribunal in June 2015, to the effect that the wrong occupation was selected by mistake, but does not consider that this is an error that can be overcome such that the Tribunal could find that r.5.19(3)(a)(iii)(B) is met, particularly where Mr Koomen did not specify what occupation should have been selected, and where a position description provided to the Tribunal with the review application refers to the nominee’s position as being a Supervisor and Trainer of Casual Employees. As the subparagraphs in r.5.19(3)(a) are cumulative, it follows that failure to satisfy r.5.19(3)(a)(iii) means that the applicant cannot satisfy r.5.19(3)(a) as a whole. This in turn means that the applicant does not meet r.5.19(3) as a whole, and it is unnecessary for the Tribunal to consider the remaining subparagraphs (rr.5.19(3)(b) to (h)).

19. The Tribunal observes, however, there are a number of other subparagraphs that it would also have to find were not met by the applicant, given the applicant’s failure to provide updated information to the Tribunal as requested.  These include the following.

    The applicant is actively and lawfully operating a business in Australia: r.5.19(3)(b)

20. Subregulation 5.19(3)(b)(ii) requires the Tribunal to be satisfied that the applicant continues to actively and lawfully operate a business in Australia as at the time of the Tribunal’s decision.  The Tribunal accepts that this appears to have been the case in May 2015, when Mr Koomen wrote to the Tribunal in support of the application, but it notes that the most recent financial statements provided for the applicant are for the 2013/14 financial year, and no updated evidence has been provided that would enable the Tribunal to be satisfied that the applicant continues to actively and lawfully operate a business in Australia as at October 2016, the time of the Tribunal’s decision.

21. Accordingly, the Tribunal is not satisfied that the applicant meets r.5.19(3)(b)(ii) and therefore must find that the applicant does not satisfy r.5.19(3)(b) as a whole.

    Terms and conditions of employment: r.5.19(3)(e)

22. Subregulation 5.19(3)(e) requires the Tribunal to be satisfied that the terms and conditions of employment applicable to the position would be no less favourable than those that are provided, or would be provided, to an Australian employee performing equivalent work in the same workplace). 

23. The Tribunal notes that the employment contract provided in 2015 indicates that the nominee is to be paid in accordance with the relevant award for the horticulture industry, but it has not been provided with any updated information as to the nominee’s current terms and conditions of employment, nor has it been provided with information about whether there are any Australian employees performing equivalent work in the same work place.

24. Accordingly, there is insufficient evidence before the Tribunal for it to be satisfied that r.5.19(3)(e) is met.

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

25. Subregulation 5.19(3)(f) requires the Tribunal to be satisfied that the applicant fulfilled the training requirements it undertook to fulfil during the period of its most recent approval as a standard business sponsor.

26. Similar to the above requirement, the Tribunal has not been provided with any evidence that would enable it to form a positive state of satisfaction in relation to this requirement, and it must therefore find that the applicant does not meet r.5.19(3)(f).

27. 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

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

    Alison Mercer
    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.

    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.