AICA Energy Australia Pty Ltd (Migration)

[2023] AATA 2868

AICA Energy Australia Pty Ltd (Migration) [2023] AATA 2868 (16 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AICA Energy Australia Pty Ltd

REPRESENTATIVE:  Mrs Babbin Mathews (MARN: 1574714)

CASE NUMBER:  2003231

HOME AFFAIRS REFERENCE(S):          BCC2019/3577922

MEMBER:P. Maishman

DATE:16 August 2023

PLACE OF DECISION:  Perth

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

Statement made on 16 August 2023 at 1:05pm

CATCHWORDS 
MIGRATION – nomination – Temporary Residence Transition stream –applicant failed to provide the requested information within the prescribed period– not satisfied that the applicant is actively operating a business at this time – lack of available information and the lack of responses from the applicant– decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 245AR, 359, 360, 363
Migration Regulations 1994, 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 30 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).

2. The applicant applied for approval on 18 July 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations because there was adverse information known to Immigration about the nominator or a person associated with the nominator and the delegate was not satisfied it was reasonable to disregard that adverse information.

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

6. On 13 July 2023 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information about updated and current information addressing the relevant criteria in reg 5.19(4) and (5) of the Regulations in writing. The invitation notified the applicant the Tribunal must be satisfied the requirements of all relevant criteria in reg 5.19 are met at the time of its decision for the nomination of the position to be approved.

7. The invitation was sent to the email address, and subsequently the postal address, provided in connection with the review. The invitation advised if the information was not provided in writing, or an extension of time requested, by 27 July 2023 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.

8. The applicant did not request an extension or provide the information within the prescribed period i.e. by 27 July 2023. 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. The application was constituted to the Member on 10 August 2023. The Tribunal has received no further information or submissions. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal had before it a copy of the Department’s file containing the nomination application and documents received by the Department.

12. The applicant gave the Tribunal a copy of the delegate’s notice of decision with its application for review. The delegate's decision record summarises the background of the application.

13. 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(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

14. The Tribunal’s letter to the applicant of 13 July 2023 invited the applicant to provide updated and current information about all the requirements in reg 5.19. It also advised that, for the nomination to be approved, the Tribunal must be satisfied that all of the relevant criteria are met at the time of its decision. As stated above, the applicant did not respond to the invitation and no updated information about the applicant, or its business, has been received by the Tribunal.

15. 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.

    Status of the nominator – reg 5.19(5)(h)

16. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

17. The invitation sent by the Tribunal on 13 July 2023 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.

18. 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 are documents that are several years out of date. The Tribunal cannot be satisfied on the evidence to hand that the applicant is actively and lawfully operating a business.

19. Given the above findings, the Tribunal is not satisfied that reg 5.19(5)(h) is met. Accordingly, reg 5.19(4)(e) is not met.

20. 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

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

    P. Maishman
    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.

    Temporary Residence Transition stream—additional requirements for approval

    (5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

    (a)at the time the application is made, the identified person holds:

    (i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

    (ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

    (iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

    (iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

    (v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

    (vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

    (b)the occupation:

    (i)is listed in ANZSCO; and

    (ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

    (c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

    (i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

    (ii)apply to the identified person in accordance with an instrument made under that subregulation;

    (d)either:

    (i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

    (ii)it is reasonable to disregard any such information;

    (e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

    (i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

    (ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

    (iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

    (f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

    (i)for a total period of at least 3 years (not including any periods of unpaid leave); and

    (ii)on a full‑time basis, with the employment being undertaken in Australia;

    (g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

    (h)the nominator:

    (i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

    (ii)is actively and lawfully operating a business in Australia;

    (j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

    (k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

    (l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

    (m)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;

    (n)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;

    (o)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;

    (p)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;

    (q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

    Minister may vary certain Temporary Residence Transition stream requirements

    (6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

    (7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

    (8)The Minister may, by legislative instrument, specify:

    (a)occupations for the purposes of paragraph (5)(c); and

    (b)persons who are exempt from the operation of that paragraph; and

    (c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

    (i)the nominator;

    (ii)the identified person;

    (iii)the occupation;

    (iv)the position in which the identified person is to work;

    (v)the circumstances in which the occupation is undertaken;

    (vi)the circumstances in which the person is to be employed in the position.