ANW GROUP PTY LTD (Migration)

ANW GROUP PTY LTD (Migration) [2019] AATA 1537 (5 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ANW Group Pty Ltd
CASE NUMBER:  1620778
DIBP REFERENCE(S):  BCC2016/1338335
MEMBER:Katie Malyon
DATE:5 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 05 March 2019 at 12:48pm

CATCHWORDS
MIGRATION – nomination refusal– Direct Entry Nomination stream – standard business sponsor – Transport Company Manager – Not enough evidence to demonstrate financial capacity of the business to employ the nominee for at least 2 years full time – applicant failed to provide requested information within the prescribed period– Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s.2A
Migration Act 1958, ss 353, 359,360, 363A,
Migration Regulations 1994, r 5.19
CASES
Gohil v MIBP [2016] FCCA 2825
Hasran v MIAC [2010] FCAFC 40
Jayshree Enterprises Pty Ltd v MIBP {2017] FCA 264

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 Immigration on 16 November 2016 to refuse the application made by ANW Group Pty Ltd (the Company) for approval of its nomination made under r.5.19 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval on 1 April 2016. 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) of the Regulations and meets all of 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) of the Regulations.
In this case, the Company has applied for approval of a nomination for the position of Transport Company Manager in respect of Indian national, Mr Sukhraj Singh Bhulla, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the Company’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the Company had not demonstrated that it had the financial capacity to be able to pay the nominee a full-time salary for the nominated position of Transport Company Manager ANZSCO 149413 for at least 2 years. The delegate noted that the only financial documentation provided was incomplete Business Activity Statements (BAS): despite the delegate’s request, no evidence was provided to confirm that the BAS had been lodged to the Australian Tax Office. Accordingly, the delegate gave no weight to the BAS. Further, the delegate gave no weight to a letter from the Company’s CPA which states that his firm acts as tax accountants for the Company and that the Company’s ‘management’ is of the opinion that the ‘business is financially stable’ and will be able to afford to ‘hire the nominee’ in the ‘foreseeable future’.
The Company was represented in relation to the review by its registered migration agent.
Background
The Company is a specialised provider of managed warehousing logistics and road freight based in Mount Isa.
On 15 February 2019, the Tribunal wrote the Company pursuant to s.359(2) of the Act, inviting it to provide updated and current information addressing the criteria in r.5.19 of the Regulations. This is particularly relevant given the significant passage of time since the review application was lodged with the Tribunal more than 2 years ago.
The Tribunal’s invitation letter was sent to the address provided by the representative assisting the Company with the review. In its letter, the Tribunal advised the Company that, if the information was not provided in writing by 1 March 2019 or if the Company 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. Furthermore, the Tribunal noted that the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Company has not provided any information or documentation within the prescribed period and no extension had been sought, or granted. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company 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.
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 Company additional time in which to provide evidence to support its review application. In this regard, the Tribunal has considered whether, in the circumstances of this case, evidence that the Company meets all the relevant requirements of r.5.19(4) of the Regulations is likely to be forthcoming, whether the Company has already had a fair opportunity to provide the relevant information or documentation, and the significance of the information or documents to the Company.
As noted above, on 16 November 2016, the delegate refused the nomination made by the Company because it did not provide independently verifiable financial documentation to demonstrate its capacity to employ the nominee on a full-time basis for at least 2 years. A copy of the delegate’s decision was provided to the Tribunal when the review application was lodged. The Tribunal wrote to the Company pursuant s.359(2) of the Act inviting it to provide a range of information demonstrating that the nomination meets all of the relevant criteria in r.5.19(4) of the Regulations. The Company has failed to provide any of the 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.
In the circumstances of this case, the Tribunal considers the Company has had sufficient time in which to address the issues arising on review, that is, whether it meets the relevant criteria for approval of the nomination.
The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975. Accordingly, the Tribunal has decided not to exercise its discretion under s.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 s.359C of the Act. In passing, the Tribunal notes that the Company is not prevented from lodging a new, fully documented decision-ready nomination application with the Department, if it so desires.
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 requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4) of the Regulations, which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met. If any of the requirements are not met, then the application must be refused: r.5.19(5) of the Regulations.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed full-time in the nominated position for at least 2 years, and the terms and conditions of that employment must not expressly exclude the possibility of an extension.
The Company provided the Department a copy of its employment contract with nominee Mr Bhullar dated 4 March 2016. The contract provides for Mr Bhullar’s permanent full-time employment in the role of Transport Company Manager at a salary of $62,400 per annum plus superannuation
In deciding whether a nominee will be employed on a full-time basis in the nominated position for at least 2 years, it is open to the Tribunal to consider whether the Company has the financial resources to meet the wages costs for the proposed employment over the relevant period: Jayshree Enterprises Pty Ltd v MIBP {2017] FCA 264 and Gohil v MIBP [2016] FCCA 2825.
As noted above, the Tribunal wrote to the Company pursuant s.359(2) of the Act on 15 February 2019 inviting it to provide information in writing to demonstrate that the Company meets the requirements of the criteria in r.5.19(4) of the Regulations, including r.5.19(4)(d). No evidence has been provided to enable the Tribunal to consider whether the Company has the financial capacity to meet the cost of employing the nominee for at least 2 years at the rate of $62,400 per annum plus superannuation as indicated in the contract of employment dated 4 March 2016 in the Department’s file. The Company has also failed seek an extension of time to provide the requested documentation.
In the circumstances, the Tribunal does not have before it any evidence of the Company’s financial capacity to meet the wages costs for the proposed employment of nominee Mr Bhulllar over the relevant 2 year period.
Based on available evidence, the Tribunal is not satisfied that the Company has demonstrated it will employ the nominee on a full-time basis in the position of Tansport Company Manager for at least 2 years. In the circumstances, the Company does not meet the requirements of r.5.19(4)(d)(i) of the Regulations.
Accordingly, the requirements in r.5.19(4)(d) of the Regulations are s not met.
Conclusion
For the above reasons the Tribunal is not satisfied that the Company meets the requirements of the Direct Entry stream in r.5.19(4) of the Regulations. The Company has not sought to satisfy the criteria in the Temporary Residence Transition stream and, as such, the Tribunal finds it has not met the requirements in r.5.19(3) of the Regulations.
Accordingly, the Company’s nomination for the position of Transport Company Manager cannot be approved and the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Katie Malyon

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).
oOOo

[2019] AATA 1537

5 March 2019

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Standing

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