Ascents Hotel Pty Ltd (Migration)

[2019] AATA 6260

Ascents Hotel Pty Ltd (Migration) [2019] AATA 6260 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ascents Hotel Pty Ltd

CASE NUMBER:  1717257

DIBP REFERENCE(S):  BCC2016/4074406

MEMBER:Keith Kendall

DATE:28 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2019 at 3:16pm

CATCHWORDS

MIGRATION – nomination of a position (employer nomination) – Temporary Residents Transition Nomination stream – intending to withdraw the review application – no less favourable terms and conditions of employment – evidence of the nominee’s relevant duties and responsibilities – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 359, 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 Immigration on 17 July 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 2 December 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) 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) of the Regulations because the nominating business did not meet any of the criteria set out in r.5.19(3)(b) to (f).

5. On 20 May 2019 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information about how the nominating business met the relevant criteria set out in r.5.19(2) and (3) in writing, where the relevant criteria were set out explicitly in that letter.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 3 June 2019 or the applicant had 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 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.

7. The review applicant has not provided the information within the prescribed period and no extension has been granted. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8. The Tribunal has also considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

9. The Tribunal considered whether, in the circumstances of the case, the evidence that the applicant meets all of the requirements of r.5.19(3) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information already and the significance of the information to the applicant.

10. The Tribunal has had regard to the fact that the nomination application was refused by the delegate on 17 July 2017. The applicant submitted a copy of the primary decision record with the review application.

11. With its acknowledgment letter of 8 August 2017, the Tribunal invited the applicant to provide material or written arguments in support of the review application. The applicant has failed to do so.

12. On 20 May 2019, the Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide information demonstrating that the nomination meets all the requirements of r.5.19(3). The applicant has failed to provide the requested information within the prescribed period set for this purpose.

13. On 18 July 2019, the Tribunal wrote to the applicant via email (at the email address provided on the file) asking the applicant to advise the Tribunal whether they intended to pursue the application or withdraw. A phone call was also placed to the nominated contact person for the applicant (Ms Erem Aziz) at the phone number on file, however, the number had been disconnected.

14. On 19 July 2019, the email sent by the Tribunal on 18 July 2019 was returned as undeliverable. A further attempt to send this email (to the same address) was also returned as undeliverable.

15. On 28 August 2019, the Tribunal contacted Ms Aziz by telephone using public information available on the applicant’s website. Ms Aziz advised that the applicant intended to withdraw the application and provided a new email address for correspondence. The Tribunal resent the correspondence of 18 July 2019 to this new email address.

16. The Tribunal contacted Ms Aziz via telephone on 30 August 2019 to confirm receipt of the email sent on 28 August 2019. Ms Aziz advised that the email had not been received and provided a new email address for correspondence. During this telephone call, the Tribunal resent the correspondence of 18 July 2019/28 August 2019 and Ms Aziz confirmed that it had been received. Ms Aziz indicated an intention to submit the withdrawal form later that day.

17. On 12 September 2019, the Tribunal wrote to Ms Aziz via email after unsuccessful attempts to contact her by telephone on 11 September 2019 and 12 September 2019. Ms Aziz responded advising that she had had difficulties submitting the withdrawal form electronically and, at that time, was overseas on leave and unable to access the documents for submission. Ms Aziz advised that she would be returning to Australia on 8 October 2019.

18. As of the date of this decision, no further submissions or any other form of contact have been made by the applicant.

19. In the 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 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

22. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

23. The applicant provided to the Tribunal a copy of a contract signed by the nominee and Ms Vicki Nagle (Director of Human Resources) on behalf of the applicant dated 20 January 2014. This contract cross-referenced a Letter of Appointment dated 20 November 2013, which was not provided to the Tribunal. The date of the nominee’s signature was 12 February 2014.

24. The applicant also provided a Job Description setting out the nominee’s key responsibilities signed by the nominee (but not the applicant) also dated 12 February 2014.

25. The applicant did not provide any information in respect of the terms and conditions that apply to Australian citizens or permanent residents performing equivalent work in the same workplace at the same location. In the absence of such information, the Tribunal is unable to be satisfied that the requirements of r.5.19(3)(e) have been met.

26. Therefore, the Tribunal is not satisfied that the terms and conditions of employment applicable to the nominee’s position will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or permanent resident for performing equivalent work in the same workplace at the same location.

27. Accordingly, the requirement in r.5.19(3)(e) is not met.

28. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). 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.

    Keith Kendall
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

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

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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.