1517314 (Migration)

[2016] AATA 4754

1517314 (Migration) [2016] AATA 4754 (1 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  C.J KENNEDY & N.A RAFFERTY

CASE NUMBER:  1517314

DIBP REFERENCE(S):  BCC2015/1843878

MEMBER:Kate Millar

DATE:1 December 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 01 December 2016 at 1:10pm

CATCHWORDS

Migration – Employer Nomination – Direct Entry Stream – Two years full-time employment – Business financial capacity – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 359C, 360(3), 363A
Migration Regulations 1994, r.5.19

CASES

Hasran v MIAC [2010] FCAFC 40

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 25 November 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 June 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)(d)(i)] of the Regulations because the delegate as not satisfied the nominee would be employed on a full-time basis in the position for at least two years.

5. On 15 November 2016 the Tribunal wrote to the review applicant under s.359 of the Act, inviting the review applicant to provide in writing information about how it meets r.5.19(4) including information such as financial reports, including profit and loss statements and balance sheets for the last two financial years and business activity statements for the last 12 months.

6. The invitation was sent to the last address provided in connection with the review.  The invitation advised that if the information was not provided in writing by 29 November 2016 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose the entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant has not provided any response within the prescribed period. In these circumstances, s.359C applies and under 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)

10. 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.

11. The delegate found this criterion was not met because the 2014 tax return of the partnership and the financial statements did not show the financial capacity to employ a person at the wage of the nominee full time for two years.  The net profit of the business in 2014 was $57,092,.  The deductions included wages for one person of $26,860 and two other employees of approximately $11,234.

12. An unsigned submission from Ms Niamh Wiltshire (who I infer is Ms Rafferty) states she believes the refusal is incorrect as the 2014 financial statements showed three full time employees.  She reports they have ‘been through’ a few staff in the last three years and could not find anyone passionate and hardworking until they met the nominee.  A further submission signed by the nominee goes on to say two of the employees appearing in the 2014 financial statements do not work for the business.   It goes on to state the nominee’s qualifications, experience and commitment to the job.  A list of hours and people working notes the two partners in the business work approximately 5 days per week between them and the nominee works full time.

13. No further financial information has been provided, despite this being requested, and in the absence of further financial information, I am not satisfied the nominee will be employed in the nominated position full time for 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.

    Kate Millar
    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).