1511077 (Migration)

[2016] AATA 3399

1511077 (Migration) [2016] AATA 3399 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LAKSHMI SAI GANESH PTY LTD

CASE NUMBER:  1511077

DIBP REFERENCE(S):  BCC2015/636533

MEMBER:Steve Georgiadis

DATE:24 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 24 February 2016 at 10:50am

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 28 July 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 applied for approval on 26 February 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 Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations as the delegate was not satisfied that the tasks to be performed in the nominated position correspond to the tasks of an occupation at ANZSCO skill level 1, 2 or 3 - [r.5.19(4)(h)(ii)(D)].

5. The applicant was represented in relation to the review by its registered migration agent but the agent did not attend the hearing, nor did the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources including (inter alia) the written submission from the applicant dated 21 December 2015 and further written submissions of 17 February 2016.

9. On 11 December 2015, the Tribunal wrote to the applicant by e-mail via the applicant’s representative. The letter advised the applicant that it had considered the material before it but was unable to make a favourable decision on this information alone and invited the applicant to appear before the Tribunal on 24 February 2016 to give evidence and present arguments in support of its application. The Tribunal wished to ask questions relating to the application (such as whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4)), and other relevant matters to ascertain whether to affirm or set aside the decision under review and substitute a decision approving the nomination. The Tribunal wished to hear and observe the oral evidence to assess the credibility of the sworn evidence provided at the hearing, and for other findings.

10. The applicant did not appear before the Tribunal at the scheduled hearing time on 24 February 2016 and no request for any adjournment had been made or allowed.

11. In light of the above, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

12. The Tribunal is required to consider ‘all of the facts of a case in total’ and come to its own view as to whether the applicant meets the requirements for approval of the nomination under the Regional Sponsored Migration stream set out in r.5.19(4), and in accordance with r.5.19(2).

13. While the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169 70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437 at 451.

14. Although in the exercise of its review function, the Tribunal may obtain such information as it considers relevant, the High Court established in the case of SZIAI that there is not imposed upon the Tribunal “a general duty to undertake its own enquiries in addition to information provided to it by the applicant and otherwise under the Act.” (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 [1]).

15. In the above circumstances, where the written notice has been sent inviting the applicant to give evidence and present arguments, the Tribunal accepts that the applicant has been provided with a reasonable opportunity to provide oral evidence in support of the application but has failed to do so and that no adjournment or other alternative arrangements have been requested.

16. The Tribunal has also considered the written submissions provided since the invitation to attend the hearing was sent to the applicant. In respect of the tasks of the nominated position, the submissions of 17 February 2016 set out as follows:

    “The job duties of the nominated position include –

     Responsible for Opening & Closing of the business
     Check stock levels on regular periods.
     Determine price for all products in store.
     Find new ways to improve sales, improve sales targets, analyze figures, forecast
        volumes and strategies.
     Ensure expense budgets are allocated and the expenses are within the allocated
        budgets each month.
     Ensure sales targets & customer service standard are met at all times.
     Maintain records of stock levels of fuel, shop products and financial
        transactions.
     Order and maintain stock levels (fuel and shop) ensuring the quality of supplies,
        and supervising the quantity, type and scheduling of orders,
     Ensure compliance with occupational health and safety regulations.
     Meet sales representatives of different companies and negotiate the purchase
        prices.
     Complete store operational requirements by scheduling and assigning employees
     Respond to customer complaints, requests, queries, and comments that are
        escalated by other staff members
     Follow up on Employee’s work results.
     Secure premises by ensuring security systems are in place and operating at all
        times.
     Check security camera recordings on a regular basis to ensure security.
     Responsible for Occupational Health & Safety regulations compliance by all staff.”

17. Notably, the duties for the position do not include key elements of duties for a Retail Manager as set out in ANZSCO 142111 for skill level 1, 2 or 3.  For example, controlling selection of staff and some aspects of undertaking budgeting for the establishment. It is noted that this skills issue is the reason the delegate was not satisfied that the tasks to be performed in the nominated position correspond to the tasks of an occupation at ANZSCO skill level 1, 2 or 3 - [r.5.19(4)(h)(ii)(D)].  A copy of the delegate’s decision was included in the application for review.

18. As aforementioned, the Tribunal wished to ask questions relating to the application including, exploring the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4)) and in accordance with r.5.19(2) such as asking questions about the tasks for the nominated position and skill levels, and to hear and observe oral evidence given to assess the credibility of this evidence at the hearing, and for other findings.

19. Having considered the available material before it, and in the absence of any oral evidence or further submitted evidentiary material, the Tribunal finds no evidence to be satisfied that the applicant meets the requirements of r.5.19(4)(h)(ii)(D) and therefore, r.5.19(4) for approval of the nomination.

20. The applicant has not sought to satisfy the criteria in the other stream, and as such has not met the requirements in r.5.19(2). Accordingly, for the reasons given above, the nomination of the position cannot be approved.

    DECISION

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

    Steve Georgiadis
    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).