Alpha Supper Cleaning Services Pty Ltd (Migration)

[2021] AATA 2607

Alpha Supper Cleaning Services Pty Ltd (Migration) [2021] AATA 2607 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Alpha Supper Cleaning Services Pty Ltd

CASE NUMBER:  1828168

HOME AFFAIRS REFERENCE(S):          BCC2017/682219

MEMBER:Terrence Baxter

DATE:22 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 22 July 2021 at 10:22am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – need for position – no response to tribunal’s invitation to provide information, or withdrawal of application – unable to be contacted by email and phone, and communication possible only through representative – previous allegations and monitoring given no weight – decision under review affirmed

LEGISLATION  
Migration Act 1958 (Cth), ss 359(2), s 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (b)

CASES
Hasran v MIAC [2010] FCAFC 40     
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 5 September 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 20 February 2017. The applicant nominated Mr Surath Chandima Gunawardena Saturusinghe Arachchillage (the nominee) in the position of Regional Contracts Manager. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 found that the application did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 25 September 2018.

6. On 9 April 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act) inviting it to provide current information addressing the relevant criteria under r.5.19(2) and (4) of the Regulations. The Tribunal is satisfied that this invitation was properly dispatched to the applicant’s email address. The invitation notified the applicant that the requested information should be received by the Tribunal by 23 April 2021. On the same day, 9 April 2021, the Tribunal received a notification that delivery of the invitation by email to the applicant’s email address, notified in the application for review, had failed. A Tribunal officer unsuccessfully attempted to contact the applicant by calling the telephone number specified in the application for review. At that time, the applicant had a further application for review (matter 1917149) current with the Tribunal. A different email address for the applicant had been specified in that application.

7. On the same day, 9 April 2021, the Tribunal contacted the applicant at the email address specified in the matter 1917149 and requested the applicant to contact the Tribunal urgently to confirm its contact details regarding a related case (this matter). On 12 April 2021, a Tribunal officer spoke with the applicant’s representative by phone and requested him to confirm the applicant’s email address. The representative stated that the email address recorded on the review application in this matter was valid but that they were having trouble with the server. He requested that emails in this matter be forwarded to the email address specified in matter 1917149. The Tribunal officer requested that the applicant provide written confirmation of the request for change of the email address. The representative stated that he would do so that day. The applicant failed to provide a written request for a change of its contact details.

8. On 30 April 2021, a Tribunal officer again contacted the applicant’s representative by phone and noted that the Tribunal had not received a written request for change of the email address. The representative stated that the review application was to be withdrawn as the nominee was no longer employed by the applicant. The representative requested during the telephone conversation that a copy of the Tribunal’s invitation on 9 April 2021 be forwarded to the applicant’s email address specified in matter 1917149. The representative stated that, upon receipt of a copy of that invitation, the applicant would provide a written withdrawal of this review application.

9. On the same day, 30 April 2021, the Tribunal wrote to the applicant at the email address specified in matter 1917149 and provided a copy of the invitation of 9 April 2021. The Tribunal noted the representative’s advice that upon receipt of the copy of the invitation, the applicant would provide a completed withdrawal form in respect of the review application.

10. On 6 May 2021, a Tribunal officer contacted the applicant’s representative by telephone. The representative stated that the applicant still intended to withdraw the review application but was awaiting legal advice. He said that he would notify the Tribunal of the applicant’s intentions as soon as possible.

11. The applicant failed to provide the information requested in the Tribunal’s invitation of 9 April 2021 within the prescribed time for responding to the invitation. No response to that invitation has been received by the Tribunal at the time of this decision. The applicant has not provided a written withdrawal of the review application.

12. Where a review applicant is invited to provide further information in accordance with s.359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information, according to s.359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with s.360(3) of the Act. Of note, 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 review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

13. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making process.

14. The Tribunal has taken into account that the applicant has been aware since 5 September 2018 of the reasons for the nomination application being refused and also that the implications of not providing the information requested in the invitation from the Tribunal of 9 April 2021 were set out in that correspondence. The Tribunal has had regard to the fact that the applicant does not appear to have received a copy of the invitation of 9 April 2021 until after the time for response to the invitation had expired. In different circumstances, the Tribunal may have been inclined to allow the applicant more time to provide evidence in support of its application. However, in this case, the Tribunal takes into account that the applicant was aware from at least 30 April 2021 of the information requested in the invitation and that the applicant has failed to provide any information in support of the application. The Tribunal has also had regard to advice from the representative that the applicant intended to withdraw the application.

15. In these 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 take any further steps to obtain the applicant’s views on the information referred to in the invitation from the Tribunal of 9 April 2021 or to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that it meets the relevant criteria under r.5.19 of the Regulations.

16. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation and having due regard to the documentary material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

    Evidence presented to the Department

19. The applicant presented no documents to the Department in support of the application.

    Evidence presented to the Tribunal

20. The applicant presented no documents to the Tribunal in support of the application.

21. This matter is complicated by the fact that the nomination application names as applicant Alpha Supper Cleaning Services Pty Ltd with the trading name ASC Services and with the identifier ABN 47 132 993 072. The application to this Tribunal for review names as applicant ASC Services Pty Ltd with the trading name ASC Services and with ABN 47 132 993 072. The delegate’s decision dated 5 September 2018 names as the nomination applicant Alpha Supper Cleaning Services Pty Ltd. The Tribunal is satisfied that the applicant for review is Alpha Supper Cleaning Services Pty Ltd and that the reference to ASC Services Pty Ltd as applicant was an error in the completion of the document.

    Departmental Client of Interest Note

22. The records of the Department included several notes regarding the applicant. A number of those notes refer to allegations received by the Department prior to September 2015. There is also a note that monitoring of the applicant had commenced in 2015 and that the monitoring was finalised as being satisfactory. For that reason, the Tribunal does not regard those earlier allegations as being relevant to this application and has placed no weight on those allegations. There are also three notes recorded in 2016 referring to directors of the applicant and an incomplete reference to an allegation concerning one director. No further information in relation to the allegation was provided to the Tribunal. Having regard to the paucity of information contained in the Departmental note and the period of time that has elapsed since the notes were made, the Tribunal does not regard them as being relevant to this application and has placed no weight on those notes.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

23. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

24. The Tribunal has considered the Department’s policy on the issue of active operation. The Tribunal is not bound by the policy but the Tribunal notes the finding of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 that the Tribunal should adopt the following practice: “When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”.

25. The policy states that a business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation. The applicant stated in its nomination application that it was established or commenced trading in Australia on 1 September 2008. The policy states that such businesses should be able to submit a balance sheet for the most recently concluded fiscal year (with comparative figures for the previous fiscal year) and profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or business tax returns for the most recently concluded fiscal year. The applicant has failed to produce financial statements or tax returns to either the Department or the Tribunal.

26. The application for review was lodged by the company Alpha Supper Cleaning Services Pty Ltd. The Department’s policy states that, in assessing the requirement for lawful operation for a company, the decision maker should be satisfied that the registered name of the applicant as indicated in the nomination application is the name that is registered with ASIC. The invitation issued pursuant to s.359(2) of the Act invited the applicant to provide current and historical evidence about the company such as an ASIC current and historical extract. No such evidence has been provided to the Department or the Tribunal.

27. The Tribunal notes the comments of the Court in Vishnumolakala v Minister for Immigration [2006] FMCA 1209 at [27] that the policy is no more than an advisory administrative guide to delegates in relation to their application of the legislation and that, as a matter of law, it could have no higher status. The Tribunal finds that the same rule applies to the Tribunal’s consideration of the policy. However, the Tribunal agrees that the suggestions set out in the policy in relation to the requirement for active and lawful operation are appropriate and considers that it is reasonably open to the Tribunal to determine this requirement on that basis.

28. Having regard to the lack of contemporary evidence before the Tribunal, bearing in mind that the applicant has failed to respond to the invitation issued pursuant to s.359(2) of the Act, the Tribunal is not satisfied that at the time of this decision the applicant is actively, lawfully and directly operating a business in Australia.

29. Accordingly, the requirement in r.5.19(4)(b) is not met.

30. 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

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

    Terrence Baxter
    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).