AC Piping Solutions Pty Ltd (Migration)

AC Piping Solutions Pty Ltd (Migration) [2023] AATA 3908 (21 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AC Piping Solutions Pty Ltd
REPRESENTATIVE:  Ms Rowena Jane Hallam (MARN: 0429550)
CASE NUMBER:  2001304
HOME AFFAIRS REFERENCE(S):          BCC2019/4415373
MEMBER:Warren Stooke AM
DATE:21 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 21 July 2023 at 9:28am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – actively and lawfully operating business – company deregistered – financial capacity – no response to s.359(2) invitation – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 January 2020 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 4 September 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(f) of the Regulations because the nominator did not provide financial statements or other information to verify the business has the financial capacity to meet its obligations. Limited weight was given by the delegate to the other supporting documents provided with the application as they did not include information around the financial capacity of the business. The delegate was not satisfied that the evidence provided demonstrated that the nominator’s business has the financial capacity to employ the identified person for at least two years and pay the identified person at least the AMSR for the occupation each year. Consequently, the delegate did not consider that the nominator meets paragraph 5.19(9)(g) and as a result subregulation 5.19(9) is not met. Therefore, paragraph 5.19(4)(f) is not met and the nominator does not meet subregulation 5.19(4).
The applicant was represented in relation to the review.
On 21 June 2023, the Tribunal sent an invitation pursuant to s359(2) to the applicant to provide information, which was due to be provided by the 5 July 2023. The applicant did not provide a response to the Tribunal in relation to the information sought by the Tribunal.
On 4 July 2023, the Representative for the applicant corresponded with the Tribunal and provided a response, as follows:
“ Thank you for your correspondence dated 21 June 2023.
I am seeking instructions from the applicant in relation to the future conduct of this application for review, and not yet in a position to respond to your invitation to provide further information.
I expect to receive instructions to withdraw this application for review, and will advise the Tribunal accordingly as soon as I have formal confirmation of same.
Please accept my sincere apologies for the delay.
This information is provided in response to the Tribunal’s request for information under Section 359 of the Migration Act. The applicant reserves the right to provide further supporting material to the Tribunal.”
In relation to the submission of the Representative, the Tribunal notes that the Representative was not in a position to respond to the s359(2) request for information and advised of an intention to seek instructions, which has not been provided, as at the time of decision.
The Tribunal has not received further advice from the Representative, and the required information due on 5 July 2023 has not been provided to the Tribunal.
Further, the Tribunal is cognisant that A C Piping Solutions Pty Ltd was deregistered with the Australian Securities & Investments Commission (ASIC) on 4 July 2021 and accordingly, is not in a position to effect a sponsorship as sought in the application.
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.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The issue before the Tribunal is whether the nominated position is still available to the applicant. The evidence before the Tribunal, as detailed above, is that the nominator is no longer operating a business and the nominating entity, A C Piping Solutions Pty Ltd, has been deregistered, as at 4 July 2021.
On 11 August 2021, the Tribunal invited the applicant to comment on the validity of a review of the application that contained the following information:
“Case number: 2001304
11 August 2021
Dear Mr Connery
INVITATION TO COMMENT ON VALIDITY OF APPLICATION FOR REVIEW – AC
PIPING SOLUTIONS PTY LTD
I am writing in relation to the application for review made by AC Piping Solutions Pty
Ltd.
I am of the view that the application made by AC Piping Solutions Pty Ltd is no
longer valid. Information before us shows that AC Piping Solutions Pty Ltd was
deregistered with the Australian Securities & Investments Commission (ASIC) on 4
July 2021. Generally speaking, once company is deregistered it ceases to exist as a
legal entity: s.601AD(1) of the Corporations Act 2001. Accordingly, it appears the
review applicant has ceased to exist and we no longer have jurisdiction in this matter.
However, this is a matter which must be determined by a Member.
If you wish to make any comments on the validity of this application, you are invited to do so, in writing, by 25 August 2021. Your application, with any comments you make, will then be referred to a Member to make a decision on the application. If the
Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
If you have any questions, please email [email protected], or contact me on the
number listed below, or telephone our national enquiry line on 1800 228 333. For
language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”
On 25 August 2021, the Representative for the applicant provided the following response to the Tribunal:
“ 25 August 2021
Dear Sir/Madam
Re: Applicant: AC Piping Solutions Pty Ltd
Case number: 2001304
Thank you for your letter dated 11 August 2021 in relation to this application for review.
I note your advice that the applicant company has been deregistered and as a result this application is no longer valid.
I am instructed that the deregistration occurred as a result of an administrative oversight, and was not deliberate. The applicant’s accountant is currently taking steps to reverse the position, and this should be finalised in the near future.
It would be appreciated if you would defer taking any steps contrary to the applicant’s interests for a brief period to allow the applicant to rectify the situation.
Thank you for your time and attention to this matter. Please do not hesitate to contact me if required.”
On 21 June 2023, the Tribunal corresponded with the applicant, pursuant to s359(2) with the following request for information that was required to be provided to the Tribunal by 5 July 2023.
“Case number: 2001304
21 June 2023
Dear Mr Connery
INVITATION TO PROVIDE INFORMATION – AC PIPING SOLUTIONS PTY LTD
I am writing on instruction from the Member conducting your review, about the
application for review made by AC Piping Solutions Pty Ltd (“the applicant”) in respect
of a decision to refuse their application for approval of a nominated position under
r.5.19 of the Migration Regulations 1994 (the Regulations).
In order for the nomination of a position to be approved, the Tribunal must be satisfied
that all of the relevant criteria in r.5.19 of the Regulations are met at the time of its
decision. As the application for nomination was made under the Direct Entry
nomination stream, the relevant criteria are in rr.5.19(4) and (9) of the Regulations.
The Tribunal now requires updated and current information addressing these
criteria. Accordingly, and without limiting the information that may be given, you or
another person authorised by the applicant are invited to give the following information
in writing. We have given examples of the type of information you should provide:
1. Information about the identity of any person authorised to speak and make
decisions on behalf of the applicant;
·     If the applicant is a company or registered business, an ASIC
company or business name extract ( If the applicant is a company or registered business, current and historical
information about its owners or office holders’ registration details;
·     An ASIC current and historical extract ( Information about the applicant directly operating an active and lawful business
in Australia, including its financial circumstances;
·     The applicant’s lodged tax returns for the last two full financial years,
business activity statements that have been lodged with the ATO for
the last 24 months and financial statements prepared in accordance
with Australian accounting standards, including profit and loss
statements and balance sheets, for the most recent two financial
years.
4. Information about the applicant’s current organisational structure and where the
nominated position sits in relation to that structure;
·     An organisational structure chart that includes all of the applicant’s
current and proposed employees, their position title/duties and their
immigration status (ie. Australian citizen, permanent resident or
temporary visa holder).
5. Information about the roles and duties of the nominated position and how they
correspond to the nominated occupation’s position description in ANZSCO;
·     Job descriptions, work samples, emails, correspondence and other
examples of the daily tasks performed in the nominated position, and
also the nominated occupation’s position description in ANZSCO (go
to and type the
nominated occupation’s 6 digit ANZSCO code number into the
‘Search’ function).
6. If the position requires a licence or registration of a particular kind, or
membership of a particular professional body, information about whether or not
the nominee holds that licence, registration or membership;
·     a copy of a valid and current licence, registration or professional
body membership held by the nominee.
7. Information about the terms and conditions of employment in the nominated
position, including whether they are more or less favourable than those provided
for an Australian citizen or permanent residence performing equivalent work in
the same workplace at the same location, and whether the nominee will be
employed on a full time basis for at least 2 years with terms and conditions not
expressly excluding the possibility of extension;
·     A current employment contract in respect of the nominee or letter of
engagement that complies with relevant awards for the nominated
position (if any).
8. If the nominated position is not located in regional Australia and the applicant
has paid the non-regional position application fee, information about:
a. the need to employ the nominee in the nominated position; AND
b. the applicant’s business operating for:
i. at least 12 months - its recent training expenditure; OR
ii. less than 12 months - its plan for future training expenditure
·     Invoices or contracts for employee training, a training program that
includes a course outline, attendance and identifies increased work
competencies, or records of investment in certain industry training
funds or recognised industry bodies.
9. If the nominated position is located in regional Australia, information about:
a. the need to employ the nominee in the nominated position and why the
position cannot be filled by an Australian citizen or permanent resident
living in the same local area; AND
b. whether a specified Regional Certifying Body located in the same State or
Territory as the nominated position has provided advice that:
i. the terms and conditions of employment are no less favourable than
those provided to Australian citizens or permanent residents
performing equivalent work in the same workplace; AND
ii. there is a genuine need to employ the nominated person as a paid
employee to work in the nominated position under the applicant’s
direct control; AND
iii. the position cannot be filled by an Australian citizen or permanent
resident living in the same area;
·     Local job advertisements for the nominated position that were not
successfully filled, and the Regional Certifying Body’s certificate
issued to the applicant in respect of this position.
10. Information about whether the applicant has been subject to monitoring by the
Department and, if relevant, the outcome of the monitoring audit;
11. Information about whether the applicant has been the subject of any
investigation about a possible contravention of the law.
Please ensure that all information you give to the Tribunal is complete and up to
date.
This information, in writing, should be received by 5 July 2023. If the information is in
a language other than English, it must be accompanied by an English translation from
an accredited translator.
If you or another person authorised by the applicant cannot provide the information by
5 July 2023, you or another person authorised by the applicant may ask us for an
extension of time in which to provide the information. If an extension of time request is
made, it must be received by us before 5 July 2023 and it must state the reason why
the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may
make a decision on the review without taking any further action to obtain the
information. The applicant will also lose any entitlement it might otherwise have
had under the Migration Act to appear before us to give evidence and present
arguments.
Alternatively, if the applicant’s circumstances have changed and the applicant no
longer wishes to proceed with this application for review, please complete a withdrawal
form by clicking on the link directly below.
Click here to access the online Withdrawal form
If you have any questions, please email [email protected], or contact me on the
number listed below, or telephone our national enquiry line on 1800 228 333. For
language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”
Actively and lawfully operating business – reg 5.19(9)(a)
Regulation 5.19(9)(a) requires that the nominator is actively and lawfully operating a business in Australia.
The evidence before the Tribunal is that A C Piping Solutions Pty Ltd was deregistered on 4 July 2021.
The Tribunal has had regard to the evidence before it and finds that there is no provision in the legislation to take into account the circumstances of the nominator or the applicant. The issue before the Tribunal is whether the nominated position is still available to the applicant. The evidence before the Tribunal, as detailed above, is that the nominator is no longer operating a business and the nominating entity has been deregistered.
On the basis of this evidence, the Tribunal finds that the position is not available to the applicant. In the circumstances, the applicant does not meet the requirements in cl.186.223(4). Therefore, cl.186.223 is not met.
The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.
Given the above findings, the Tribunal is not satisfied that reg 5.19(9)(a) is met. Accordingly, reg 5.19(4)(f) is not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Warren Stooke AM
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related 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;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.

[2023] AATA 3908

21 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction