acidgreen pty ltd (Migration)

[2019] AATA 6357

acidgreen pty ltd (Migration) [2019] AATA 6357 (24 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Acidgreen Pty Ltd

CASE NUMBER:  1718000

DIBP REFERENCE(S):  BCC2017/1672243

MEMBER:Karen McNamara

DATE:24 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2019 at 11:17am

CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – duties of nominated position – worker since left company – application not withdrawn – no substantive response to tribunal’s request for current information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 359(2), 359C, 360(3), 363(1)(b), 363A

Migration Regulations 1994 (Cth), r 5.19(4)(h)

CASE

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 14 August 2017 to reject the application by Acidgreen Pty Ltd (the applicant) 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 5 May 2017. 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) (h) of the Regulations because the applicant did not provide evidence to support their claims, that the duties of the nominated positon correspond with those of the occupation of Web Designer (ANZSCO 23414).

5. The applicant applied to the Tribunal on 15 August 2017 for review of the delegate’s decision and has provided the Tribunal with a copy of the delegate’s decision.

6. On the 18 September 2019, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide updated and current information that would assist to determine whether the criteria in          r. 5.19(2) & (4) of the Regulations were met.

7. The applicant was advised that if the information was not provided in writing by 2 October 2019, or if the applicant has not made a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information, and further, the applicant would lose any entitlement it might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

8. On 18 September 2019, the Tribunal received an email from the applicant’s representative stating, “this was from 2017 and the staff is no longer with the company. thanks” .

9. On 19 September 2019, the Tribunal wrote to the applicant (dispatched by email to the authorised recipient), requesting the applicant to confirm the withdrawal of the nomination application for review by completing the withdrawal of application form which was forwarded with the Tribunal’s letter.

10. On 18 October 2019, the Tribunal wrote to the authorised recipient referring to the Tribunal’s prior correspondence dated 19 September 2019, 9 October 2019 and 14 October 2019, seeking confirmation of the applicant’s intention to withdraw their application.

11. At the time of this decision, the applicant’s representative has not responded to the Tribunal’s requests seeking confirmation of the applicant’s intention to withdraw their application. Therefore, there is no evidence before the Tribunal to support that the applicant wishes to withdraw their application.

12. The Tribunal notes that the only response from or on behalf of the applicant at the date and time of this decision is the email from the applicant’s representative stating “this was from 2017 and the staff is no longer with the company. thanks”.  In these circumstances, the Tribunal considers s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

13. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act, to allow the applicant additional time in which to provide evidence to support the review application. In this regard the Tribunal considered whether, in the circumstances of this case, evidence that the applicant meets all of the requirements of r.5.19(4) of the Regulations 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.

14. The Tribunal has regard to the fact that the nomination application was refused by the Department on 14 August 2017. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for approximately two years of the reasons for the nomination application refusal. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of the criteria in regulation 5.19(4) of the Regulations. The applicant has failed to provide requested information within the prescribed period set for this purpose and nor has any request been received to extend the time to provide requested documentation. The Tribunal further notes the representative’s comments that the staff are no longer with the company and inference that the application is no longer required.

15. In these circumstances, the Tribunal considers the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of reg. 5.19(3) & (4).  The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act. In passing, the Tribunal notes that the applicant is not prevented from lodging a new nomination application with the Department.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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)

18. 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, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.

    Background

19. On 5 May 2017, the applicant lodged a nomination application under the Direct Entry stream.

20. In the application form, the applicant applied for approval of the nominated positon of Web Designer (ANZSCO 232414).  The nominee in this application is Didier Esparaza Lachere.

21. When considering the application, the delegate took into account that the nominator did not provide verifiable evidence to support their claims that the duties of the nominated position match those of the occupation of Web Designer. Based on the evidence before them, the delegate was not satisfied the applicant met r. 5.19(4)(h)(i).

22. The delegate also considered whether the applicant met r. 5.19(4)(h)(ii) and found that because the position is not located in regional Australia and that the applicant did not apply under the Regional Sponsored Migration Scheme, the applicant did not meet r. 5.19(4)(h)(ii).

23. The Tribunal wrote to the applicant under s.359 (2) of the Act on 18 September 2019, inviting them to provide information in writing to demonstrate that the applicant meets the requirements of the criteria in r.19(4) of the Regulations, including r.5.19(4)(h) of the Regulations. The applicant has failed to provide requested documentation or seek an extension of time to provide the documentation.

24. The Tribunal has had regard to the information presently before it. There is no evidence before the Tribunal including position descriptions or statements, which specify that the tasks conducted by the nominee correspond to the tasks of Web Designer, an occupation specified in the relevant instrument. Furthermore, there is no evidence before the Tribunal to support that the applicant has met the training requirements specified in the relevant instrument.

25. Given the above findings, the applicant does not meet the requirements of r.5.19(4)(h)(i) of the Regulations.

26. The Tribunal notes that the position and business is located in Crows Nest (metropolitan Sydney) NSW which is not located in regional Australia. Therefore, the applicant does not satisfy the requirements of r. 5.19(4)(h)(ii).

27. Accordingly, the requirements in r.5.19(4)(h) of the Regulations are not met.

28. 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

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

    Karen McNamara
    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)       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;

    (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 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).