AIR VYD PTY LTD (Migration)

[2018] AATA 1253

AIR VYD PTY LTD (Migration) [2018] AATA 1253 (16 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AIR VYD PTY LTD

CASE NUMBER:  1719401

DIBP REFERENCE(S):  BCC2017/2279322

MEMBER:Peter Emmerton

DATE:16 April 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 16 April 2018 at 1:07pm

CATCHWORDS

Migration – Nomination approval – Direct Entry Nomination stream – Regional Sponsored Migration Scheme position – No certification from a regional body – Practice and Procedure – Tribunal request for further information – Applicant did not respond to Tribunal’s letter – No entitlement to a hearing

LEGISLATION
Migration Act 1958 s 359
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 10 August 2017 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 June 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)(a)(ii) of the Regulations because the delegate was not satisfied that the business has demonstrated the need for a paid employee and the genuine need for a full-time paid position of Importer or Exporter, ANZSCO 133311.

5. On 23 February 2018 the Tribunal wrote to the applicant pursuant to s359(2) of the Act, inviting the applicant to provide information which included whether a specified Regional Certifying Body (RCB) 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. 

6. The invitation advised the applicant that if the information was not provided in writing by 9 March 2018 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. The applicant did not respond to the Tribunal’s letter. The effect is that the applicant has no entitlement to a hearing and the Tribunal has proceeded to make a decision on the available evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)

9. 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 (see legislative instrument IMMI), 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.

10. The applicant applied for the nomination as a Regional Sponsored Migration Scheme position. They are therefore required to meet the second set of requirements referred to above.

11. Regulation 5.19(4)(h)(ii)(F) requires that an RCB, located in the same State or Territory as the position, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).

12. There is no evidence on the Department’s file that the applicant has obtained the necessary certification from a regional certifying body. Nor did the applicant provide any evidence of having obtained the necessary certification when requested by the Tribunal.

13. There is no evidence before the Tribunal that the applicant meets r.5.19(4)(h)(ii)(F).

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

15. 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

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

    Peter Emmerton
    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).