A Falzon & A J Falzon (Migration)

[2020] AATA 3161

A Falzon & A J Falzon (Migration) [2020] AATA 3161 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  A Falzon & A J Falzon

CASE NUMBER:  1826416

DIBP REFERENCE(S):  BCC2018/919135

MEMBER:Keith Kendall

DATE:1 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2020 at 5:13pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – advice from Regional Certifying Body – no response to s 359(2) invitation – not entitled to appear before the Tribunal – 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 Immigration on 22 August 2018 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 2018. 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 the 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) of the Regulations because the delegate was not satisfied that the applicant would employ the nominee on a full time basis for at least two years and was not satisfied that the terms and conditions did not expressly exclude the possibility of extending the period of employment. The delegate also noted that no information had been provided that a Regional Certifying Body had advised the Minister of matters required by r.5.19(4)(h)(ii)(F) and, therefore, the nomination had not met r.5.19(4)(h).

5. The applicant was represented in relation to the review by its registered migration agent.

6. On 10 February 2020, the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide updated and current information about meeting the requirements of r.5.19(4) in writing.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 24 February 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant did not provide the information within the prescribed period and no extension had been granted. The Tribunal notes further information was received, but outside the prescribed period (on 27 February 2020). In these circumstances, s.359C 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.

9. On 12 March 2020, the Tribunal wrote to the applicant advising that it had lost its entitlement to a hearing to provide evidence and give arguments. The Tribunal advised the applicant that it had a further opportunity to provide evidence or supporting documents to argue its case until 26 March 2020.

10. The applicant provided a further written submission with accompanying information and evidence on 26 March 2020 and further documents on 14 April 2020. This information, evidence and documents have been considered in reaching the decision below.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

13. 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, 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.

14. Reg.5.19(4)(h)(ii)(F) requires that a body specified by the Minister in an instrument in writing located in the same State as the nominated position has advised the Minister in respect of particular requirements in r.5.19(4).

15. The relevant legislative instrument for this purpose is legislative instrument IMMI 17/059.

16. While r.5.19(4)(h)(ii)(F) does not specify the form in which the advice needs to be provided, that regulation is clear that the advice needs to come from a body identified in legislative instrument IMMI 17/059 (a Regional Certifying Body).

17. The applicant has not provided any evidence (such as a Form 1404) that any such body has provided the required advice. The Tribunal also notes that in the nomination application, in response to the question “Has this nomination been certified by a Regional Certifying Body?” the applicant has answered no.

18. The applicant provided a copy of the delegate’s decision with its review application to the Tribunal. That decision identified that, in the information submitted prior to that decision, no person specified in an instrument relevant to r.5.19(4)(h)(ii)(F) had advised the Minister of the matters mentioned in r.5.19(4)(e) or r.5.19(4)(h)(ii)(B) and (C) had been met.

19. That decision further identified that a search of Departmental records failed to locate evidence that a Regional Certifying Body had conducted an assessment of a Form 1404 addressing these matters.

20. Consequently, the applicant had been put on notice that satisfaction of r.5.19(4)(h)(ii)(F) was required.

21. In the submissions provided on 26 March 2020 and 14 April 2020, the applicant did not provide a Form 1404 assessed by a Regional Certifying Body. The applicant did provide evidence seeking to address the matters that are identified in r.5.19(4)(h)(ii)(F), however, none of this information was provided by a Regional Certifying Body.

22. The wording of r.5.19(4)(h)(ii)(F) is clear in that it requires the advice to emanate from a body specified by the Minister in an instrument in writing (i.e. a Regional Certifying Body).

23. Therefore, the Tribunal is not satisfied that the requirement in r.5.19(h)(ii)(F) has been met.

24. As r.5.19(4)(h)(ii) has not been satisfied, the Tribunal has considered whether the applicant has satisfied r.5.19(4)(h)(i) as an alternative to satisfying r.5.19(4)(h).

25. In considering r.5.19(4)(h)(i), the Tribunal has had regard to r.5.19(4)(a)(i), which requires that the nomination application be made in accordance with r.5.19(2).

26. Reg.5.19(2)(b) requires that a nomination application must be accompanies by the fee mentioned in r.5.37.

27. Reg.5.37(3) provides that if the nomination application seeks approval in accordance with r.5.19(4)(h)(i), the prescribed fee is $540.

28. There is no evidence of a fee having been paid with the nomination application in the Department’s file or in the information and evidence available to the Tribunal. The Tribunal is, therefore, satisfied that no fee was paid with the nomination application.

29. As no fee was paid with the nomination application, r.5.19(4)(a) cannot be satisfied if the applicant seeks to rely on r.5.19(4)(h)(i).

30. Accordingly the requirements of r.5.19(4)(h) are not met.

31. 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

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

    Keith Kendall
    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).