AUS REAL ESTATE PTY LTD (Migration)

[2019] AATA 1044

AUS REAL ESTATE PTY LTD (Migration) [2019] AATA 1044 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AUS Real Estate Pty Ltd

CASE NUMBER:  1615721

DIBP REFERENCE(S):  BCC2015/3188513 

MEMBER:C. Packer

DATE:21 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 March 2019 at 11:51am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Real Estate agent – invitation to provide further information – no response – not entitled to appear before the Tribunal – actively and lawfully operating a business in Australia – genuine need – Form 1404 – Regional Certifying Body’s advice – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 5 September 2016 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 30 October 2015. 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). In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B) of the Regulations because the Regional Certifying Body for Victoria did not certify there is a genuine need for the nominator to employ the visa applicant to work in the position, and the delegate accepted this advice. Also on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the nominator failed to demonstrate it had the financial capacity to offer full-time employment.

4. On 5 March 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information that addressed the requirements in r.5.19(4). This included information about the review applicant operating a business in Australia.

5. 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 19 March 2019 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.

6. 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.

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.

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

9. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. On 5 March 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information that addressed the requirements in r.5.19(4). This included information about the review applicant operating a business in Australia. However, the review applicant did not respond to the Tribunal’s invitation. The information before the Tribunal concerns circumstances in 2016 and earlier. There is no information before the Tribunal that shows the applicant has lawfully operated a business since 2016 and at the time of this decision. In sum, the Tribunal is not satisfied that the applicant is lawfully operating a business in Australia

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

    Genuine need for the position: r.5.19(4)(h)

11. Regulation 5.19(4)(h) contains a number of alternative requirements. In this case, the applicant seeks to satisfy r. 5.19(4)(h)(ii) which requires 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.

12. The Victorian Department of Economic Development, Jobs, Transport & Resources, Gippsland Regional Office at Traralgon completed a Form 1404 (Regional Sponsored Migration Scheme- Regional Certifying Body advice) on 10 June 2016. The applicant provided this form to the Department in his application. Instrument IMMI 17/059 specifies the Department is a Regional Certifying Body for the purposes of r.5.19(4)(h)(ii)(F). The Form 1404 indicated the nominating business was Aus Real Estate Pty Ltd with an address at Morwell 3840, and concerned the job of Real Estate agent ANZSCO 612114. Instrument IMMI 17/059 specifies Postcode 3840 is in regional Australia. Based on the information before the Tribunal including the application and Form 1404, I find that r.5.19(4)(h)(ii)(A) is met as the position is located in regional Australia.

13. The application and documents provided by the applicant, together with the Form 1404, show that the tasks to be performed in the position correspond to the tasks of a real estate agent ANZSCO 612114. That occupation is specified in instrument IMMI 15/083 for the purposes of r.5.19(4)(h)(ii)(D). Accordingly, I find that r.5.19(4)(h)(ii)(D) is met.

14. Based on the information before the Tribunal including the Form 1404, I find that r.5.19(4)(h)(ii)(F) is met as 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).

15. I next considered the requirements of r.5.19(4)(h)(ii)(B) and (C): (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. However, the Regional Certifying Body’s advice contained in the signed and stamped Form 1404, about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C), is that the nomination does not satisfy those requirements.

16. On 5 March 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information that addressed the requirements in r.5.19(4). This included information that addressed r.5.19(4)(h)(ii)(B) and (C). However, the review applicant did not respond to the Tribunal’s invitation. The information before the Tribunal concerns circumstances in 2016 and earlier. In sum, based on the information before the Tribunal, the Tribunal is not satisfied that: there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and 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.

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

    Conclusion

18. 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

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

    C. Packer
    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

    (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).