234 Sky Pty Ltd (Migration)

[2022] AATA 4468

234 Sky Pty Ltd (Migration) [2022] AATA 4468 (11 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  234 Sky Pty Ltd

REPRESENTATIVE:  Ms Suzanne Weel

CASE NUMBER:  1921361

HOME AFFAIRS REFERENCE(S):          BCC2018/1010080

MEMBER:De-Anne Kelly

DATE:11 October 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 11 October 2022 at 9:08am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Marketing Specialist – specified occupation – IMMI 18/005 – inapplicability conditions – minimum nominated salary – no response to s.359(2) letter – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 Home Affairs on 12 July 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 2 March 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(i)(AAA) of the Regulations because the occupation is not applicable to the person identified in the nomination because there is an inapplicability condition in the instrument IMMI 18/005 such that the “Nominated base salary of less than AUD 65,100” and since the nominated salary was $60,000, it did not meet the criteria.

5. The applicant was represented in relation to the review.

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

   Tribunal invitation to provide information

7. On 17 August 2022 the Tribunal invited the applicant under s.359(2) of the Migration Act 1958 (the Act) to provide updated and current information that demonstrated that the nomination met all of the criteria in r.5.19 of the Regulations at the time of its decision.

8. The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 31 August 2022, or within the period allowed for this purpose, or it would lose any entitlement it might otherwise have under the Act to appear before the Tribunal.  The invitation was sent via the email address provided on the review application form.

9. However, the applicant did not provide its requested information, within the prescribed period and did not request an extension of time.

10. In these circumstances, s.359C of the Act 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.

11. To date, the requested information has not been provided and the applicant has not contacted the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

14. On 2 March 2018, the applicant lodged an Employer Nomination Scheme – visa subclass 186 in the direct entry stream for the position of Marketing Specialist ANZSCO 225113 on $60,000 per annum to be employed in Fortitude Valley Qld 4006 in favour of Ms Chung Chung LI.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

15. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

16. In the invitation sent by the Tribunal it requested updated evidence of financial circumstances such as tax returns for the last two full financial years and BAS statements lodged with the ATO for the past 24 trading months to demonstrate that the business is actively and lawfully operating. The applicant did not provide updated information in response to the invitation and the Tribunal can only examine the evidence it has to hand which is scant and being documents that are several years out of date. The Tribunal cannot be satisfied on the evidence to hand that the applicant is actively operating a business.

17. Accordingly, the requirement in r.5.19(4)(b) is not met.

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

18. 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. 

19. In the invitation sent by the Tribunal it requested updated evidence of financial circumstances such as tax returns for the last two full financial years and BAS statements lodged with the ATO for the past 24 trading months to demonstrate that the business is financially viable such that it can employ the person (the nominee) on a full-time basis for at least two years.

20. The applicant did not provide updated contemporary information and the Tribunal can only examine the evidence it has to hand which is scant and being documents that are several years out of date and going back to FY 2018.The Tribunal cannot be satisfied on the evidence to hand that the nominator has the financial capacity such that the employee (the nominee) will be employed on a full-time basis in the position for at least 2 years and as such reg.5.19(4)(d)(i) is not met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

21. 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 that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 18/005, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

22. The tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument IMMI18/005 and whether any additional applicability requirements for that occupation are met. It is noted that the instrument states

    (1) For the purposes of sub-subparagraph 5.19(4)(h)(i)(A) of the Regulations:
    (a) an occupation mentioned in the Medium and Long-term Strategic Skills List or the Short-term Skilled Occupation List is specified; and

    (b) the occupation is applicable to any person, subject to section 9 of this instrument.

    9 Certain occupations not applicable to persons who are to work in certain positions
    For the purposes of sub-subparagraph 5.19(4)(h)(i)(A) of the Regulations, an occupation is not applicable to a person, as mentioned in sub-subparagraph 5.19(4)(h)(i)(AAA), if:
    (a) the occupation is mentioned in column 1 of an item of the Medium and Long-term Strategic Skills List or the Short-term Skilled Occupation List; and
    (b) column 4 (inapplicability conditions) of that item mentions one or more numbers; and

    (c) the item of the following table with that number, or an item of the following table with one of those numbers, applies to the position in which the person is to work.

23. IMMI 18/005 has inapplicability requirements listed against Marketing Specialist ANZSCO 225113 namely items 2,11 and 19. Item 2 states that the “The position has a nominated base salary of less than AUD 65,000”.

24. It is noted that the invitation from the Tribunal requested an updated employment contract that would have included the nominated base salary however there was no response to the invitation and the nominated base salary is $60,000 as per the employment contract 17 February 2018.

25. Accordingly, the Tribunal finds that item 2 applies to the position and the occupation is not applicable to the nominated person since the salary is less than AUD 65,000 and therefore the application does not satisfy reg 5.19(4)(h)(i)(AAA).

26. Accordingly, the requirements of reg 5.19(4)(h) are not met.

27. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). 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.

    De-Anne Kelly
    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

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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 the person identified under subparagraph (a)(ii), as 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 specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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).