1512054 (Migration)

[2016] AATA 3908

1512054 (Migration) [2016] AATA 3908 (17 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Martin Bonnici

CASE NUMBER:  1512054

DIBP REFERENCE(S):  BCC2015/277112 BCC2015/284824

MEMBER:Carolyn Wilson

DATE:17 May 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 17 May 2016 at 3:38pm

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 August 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 27 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 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)(i)(B)(I) of the Regulations because they had not provided evidence to demonstrate they met the training benchmarks.

5. The applicant appeared before the Tribunal on 3 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominated visa applicant Ms Shang Ying Yang.

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.

   Term of employment of the visa holder: r.5.19(4)(d)

8. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

9. The applicant runs a property development business as a sole proprietor.  He has been in business since 1985, and has never had an employee.  As is usual in the construction industry, he works with contractors.  The applicant claims however he is willing and able to employ the nominee for at least 2 years full-time in the position of Business and Communication Development Consultant.   He wants to expand his business by having a dedicated person sourcing and managing investors from China.

10. The nomination was lodged in January 2015.  An employment contract for the position dated 12 January 2015 states the role commences on 1 February 2015.  However, at hearing the applicant confirmed the nominee has not worked for him since 1 February 2015, and in fact has never worked for him for wages.  He clarified the applicant has worked for him for no pay when he gave her some tasks to test her ability and suitability.

11. The Tribunal raised with the applicant its concerns that despite him identifying the position in January 2015, entering into an employment contract providing for employment since February 2015, and in the circumstance where the nominee is present in Australia, he has never provided her with employment.  The Tribunal indicated this raised concerns about his commitment to providing employment into the future, particularly noting he has never before engaged an employee in his business.  The applicant claimed he was financially able and willing to provide the minimum 2 years of employment.

12. The Tribunal has considered the applicant’s oral evidence that he is committed to employing the nominee and has the financial capacity to do so. The Tribunal is not persuaded however that there is a genuine position available that will provide full-time employment for at least 2 years.  The Tribunal gives weight to the fact the applicant has not employed anyone to date, and has entered into an employment contract with the nominee and then breached that contract by not providing employment.  The applicant also gave oral evidence that if there is insufficient work in the nominated position, a newly created position in which he has never employed anyone before, he could find alternate administrative work for the applicant to do. The applicant was apparently unaware of his obligation to provide employment in the nominated occupation for the nominated position.  He has also stated in writing to the Tribunal that the nominee’s employment is conditional and that if she is not granted residency he will not have a position available.  All of this evidence raises doubts about the genuineness of the position and the length and nature of the employment.

13. The Tribunal has considered the evidence provided by the applicant, both oral and written, but for the reasons given above, is not satisfied the applicant will provide full-time work in the nominated position for at least two years. 

14. Accordingly, the requirement in r.5.19(4)(d) is not met.

15. 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

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

    Carolyn Wilson
    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).