ASPLEY SUPER CLINIC PTY LTD ATF THE ASPLEY SUPER CLINIC TRUST (Migration)

[2019] AATA 4224

ASPLEY SUPER CLINIC PTY LTD ATF THE ASPLEY SUPER CLINIC TRUST (Migration) [2019] AATA 4224 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  ASPLEY SUPER CLINIC PTY LTD ATF THE ASPLEY SUPER CLINIC TRUST

CASE NUMBER:  1704672

DIBP REFERENCE(S):  BCC2016/1123854

MEMBER:Bridget Cullen

DATE:10 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 10 September 2019 at 11:26am

CATCHWORDS
MIGRATION – Temporary Business Entry  (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – s 245AR(1) certification not provided with nomination application – time of application criteria – issues with migration agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 245AR(1)
Migration Regulations (Cth) 1994, r 5.19, Schedule 2, cl 457.223

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 21 February 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 15 March 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)(a) of the Regulations because the nomination application was not made in accordance with r.5.19(2).

5. The applicant, through its director, Dr Charles Hur, appeared via telephone, before the Tribunal on 3 September 2019 to give evidence and present arguments. The hearing was conducted jointly, together with the related review of the visa refusal for the nominee, Dr Sailasa Bolekinaivalu Vueti.  The Tribunal also received oral evidence from Dr Vueti. 

6. The applicants were represented by their registered migration agent, who is also a solicitor. The representative attended the Tribunal hearing.

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 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.

   The application must be compliant: r.5.19(3)(a)

9. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

10. The employer nomination application was lodged with the Department on 15 March 2016. It nominated Mr Sailasa Bolekinaivalu Vueti for the position of General Practitioner – ANZSCO 253111. On 21 February 2017, a delegate for the Minister refused the nomination as the application did not satisfy r.5.19(3)(a)(i).

11. Regulation 5.19(3)(a)(i) requires that the nomination application be made in accordance with r.5.19(2). Regulation 5.19(2) states the following:

    The application must:

    (a)  be made in accordance with approved form 1395 (Internet); and

    (aa) include a written certification by the nomination 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.

12. Regulation 5.19(2)(aa) required the nominator to, alongside their nomination application, that, in relation to the nomination, include the certification that they have (or have not) engaged in conduct constituting a contravention of s.245AR(1) of the Act.

13. The applicant did not provide the written certification alongside the application, and therefore did not meet Regulation 5.19(2)(aa), thereby not satisfying r.5.19(3)(a)(i), and the employment nomination application was refused.

14. The applicant has provided the Tribunal with a “Certification Form – Payment for visa sponsorship” indicated that it has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act, dated 3 September 2019, signed by Dr Hur.

15. At the hearing, the Tribunal asked the applicant’s representative for her submissions in relation to whether the requirement to provide the r.245AR(1) certification was a time of application criteria.  The applicant’s representative conceded that this was the case. The applicant, and the representative, explained that the applicant’s previous migration agent did not advise of this requirement at the time the nomination application was lodged with the Department.

16. The Tribunal does not consider that it has the discretion to overlook a time of application criteria, and has made the applicant aware of the regulatory role of the Office of the Migration Agents Registration Authority, should they wish to raise their concerns in that forum. 

17. The Tribunal finds that the s.245AR(1) certification was not provided with the nomination application, and that the nomination application has not been made in accordance with r.5.19(2)(aa).

18. Given the above findings, the requirement in r.5.19(3)(a) is not met.

19. 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

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

    Bridget Cullen
    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.