A Falzon & A J Falzon (Migration)

[2020] AATA 2481

A Falzon & A J Falzon (Migration) [2020] AATA 2481 (13 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  A Falzon & A J Falzon

CASE NUMBER:  1826413

DIBP REFERENCE(S):  BCC2018/943245

MEMBER:  Keith Kendall

DATE:  13 March 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review to

refuse the nomination.

Statement made on 13 March 2020 at 4:55pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination – applicant failed to provide the requested information within the prescribed period – less favourable employment conditions / entitlements – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 140GB, 359, 360, 363

Migration Regulations 1994, r 5.19

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 27 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)(a)(ii) of the Regulations because the applicant had not demonstrated a need for a paid employee in the nominated position. The delegate also refused the application on the basis that the delegate was unable to make a determination that the terms and conditions of employment would be less favourable than those provided to an Australian citizen or permanent resident (this was presented as addressing r.5.19(4)(d), although the reasoning reflects the requirement in r.5.19(4)(e)). The delegate further noted that r.5.19(4)(h)(ii) was not satisfied as there was no evidence that a body specified in an instrument for the purpose of r.5.19(4)(h)(ii)(F) had advised the Minister that the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) and (C) had been met.

5.On 10 February 2020, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Migration Act 1958 (the Act), inviting the review applicant to provide information about how the applicant met the criteria set out in r.5.19(4) in writing, where these criteria were explicitly specified in that letter.

6.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 review applicant would lose any entitlement they 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 the information within the prescribed period and no extension has been granted. 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8.The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

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9.The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets the requirements of r.5.19(4) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

10.The Tribunal has had regard to the fact that the nomination application was refused by the Department on 22 August 2018. The applicant submitted a copy of the primary decision record with the review application.

11.With its acknowledgment letter of 11 September 2018, the Tribunal invited the applicant to provide material or written arguments in support of the review application. The applicant has failed to do so.

12.The Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in r.5.19(4) of the Regulations. The applicant has failed to provide the requested information within the prescribed period set for this purpose.

13.In the circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. In the circumstances, the Tribunal has determined to make a decision on the review without taking further action to obtain the information in accordance with s.359C of the Act.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

16.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.

No less favourable terms and condition of employment: r.5.19(4)(e)

17.Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

18.The applicant has not provided a copy of any employment agreement between the applicant and the nominee. No other information has been provided in relation to the terms and conditions that would be applicable to the nominee’s employment.

19.In the absence of any information relating to the terms and conditions that would apply to the nominee’s employment, the Tribunal is not satisfied that the terms and conditions of employment applicable to the nominated position would be no less favourable than the terms and conditions that would apply to an Australian citizen or permanent resident for performing equivalent work in the same workplace at the same location.

20.Accordingly the requirements of r.5.19(4)(e) are not met.

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21.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

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

Keith Kendall
Member

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ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval 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:

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(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).

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