Ausbase Investments Pty Ltd (Migration)

[2021] AATA 4074

Ausbase Investments Pty Ltd (Migration) [2021] AATA 4074 (18 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ausbase Investments Pty Ltd

CASE NUMBER:  1900152

HOME AFFAIRS REFERENCE(S):          BCC2016/1927296

MEMBER:De-Anne Kelly

DATE:18 October 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 18 October 2021 at 1:55pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – nominated business located in regional area – departmental site visit found another business operating at location – tenancy agreement in same area provided to tribunal – term of tenancy now passed – no information about current business operations provided – decision under review affirmed

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

CASE

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 Home Affairs on 14 December 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 2 June 2016. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(4)(h)(ii)(A) of the Regulations because the nominating business was not located in a regional area. This was the result of a site visit by Officers from Border Force which found another business operating at the nominated location.

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

   Tribunal invitation to provide information

6. On 6 September 2021 the Tribunal invited the applicant under s.359(2) of the Migration Act 1958 (the Act) to provide updated and current information that demonstrated that the nomination met all of the criteria in r.5.19 of the Regulations at the time of its decision.

7. The combined invitation also specifically stated that the Tribunal must receive the applicant’s comments / response and the requested information by 20 September 2021, or within the period allowed for this purpose, or it would lose any entitlement it might otherwise have under the Act to appear before the Tribunal.  The invitation was sent via the email address provided on the review application form.

8. However, the applicant did not provide its requested information, within the prescribed period and did not request an extension of time. The applicant sent an email dated 20 September 2021 stating they were unable to provide any information at this time.

9. In these circumstances, s.359C of the Act applies as follows.

   359C Failure to give information, comments or respond to a written invitation.

   (1)  If a person:

   (a)  Is invited in writing under section 359 to give information; and

   (b)  Does not give the information before the time for giving it has passed;

   The Tribunal may make a decision on the review without taking any further action to obtain the information.

   (2)  If the applicant:

   (a)  Is invited under 359A to comment on or respond to information; and

   (b)  Does not give the comments or the response before the time for giving them has passed:

   The Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

10. 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.

11. To date, the requested information has not been provided and the applicant has not contacted the Tribunal to indicate that the information is forthcoming but rather to advise that they are unable to provide information. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

13. On 2 June 2016, the applicant lodged a Regional Sponsored Migration Scheme employer nomination in the Direct Entry Stream for the position of Motor Mechanic to be employed at Price Street, Nambour QLD 4560 in favour of Mr Hemantkumar Minalbhai Patel.

    The application is compliant: reg 5.19(4)(a)

14. Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.

15. In the invitation sent by the Tribunal it requested updated evidence of the need to employ the nominee in the nominated position of Motor Mechanic. The Tribunal would for example expect to have provided an organisation chart detailing the staff and their positions in the business; PAYG payment summaries or payslips to evidence the staff wages; a current job description and examples of the daily tasks carried out such as photos of the interior of the business.

16. The Tribunal would expect a current employment contract and job description, but this was not provided. The only financial information dates to 2016 and does not show that the business is currently profitable and operational and has a need for a Motor Mechanic. The applicant needs to provide evidence that the nominated role of Motor Mechanic is needed in the business.

17. The applicant did not provide updated information in response to the invitation and the Tribunal can only examine the evidence it has to hand which is scant and does not identify a need for the nominator to employ a paid employee to work in the position of Motor Mechanic under the nominator’s direct control.

18. Accordingly, the requirement in r.5.19(4)(a) is not met.

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

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

20. In the invitation sent by the Tribunal it requested updated evidence of financial circumstances such as tax returns for the last two full financial years and BAS statements lodged with the ATO for the past 24 trading months to demonstrate that the business is actively and lawfully operating.

21. The applicant did not provide updated information in response to the invitation and the Tribunal can only examine the evidence it has to hand which is scant and being documents that are several years out of date. The Tribunal cannot be satisfied on the evidence to hand that the applicant is actively operating a business and as such reg.5.19(4)(b)(i) is not met.

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

    Term of employment of the visa holder: reg 5.19(4)(d)

23. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

24. In the invitation sent by the Tribunal it requested updated evidence of financial circumstances such as tax returns for the last two full financial years and BAS statements lodged with the ATO for the past 24 trading months to demonstrate that the business is financially viable such that it can employ the person (the nominee) on a full time basis for at least two years.

25. The applicant did not provide updated information in response to the invitation and the Tribunal can only examine the evidence it has to hand which is scant being documents that are several years out of date. The Tribunal cannot be satisfied on the evidence to hand that the nominator has the financial capacity such that the employee (the nominee) will be employed on a full-time basis in the position for at least 2 years and as such reg.5.19(4)(d)(i) is not met.

26. Accordingly, the requirement in reg 5.19(4)(d) is not met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

27. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in a legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·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.

    Located in a regional area – reg. 5.19(4)(h)(ii)(A).

28. The Tribunal needs to determine if the nominator’s business is located in a regional area. The applicant was visited at the address nominated in the original employer nomination application in Nambour but officers from the Department found another business operating at this site and put this concern to the applicant. A commercial tenancy agreement was subsequently submitted for an address in Forest Glen QLD 4556. It is noted that this postcode is in the list of regional areas in IMMI 16/045 so the address in the tenancy agreement is in a regional area. However, the tenancy is only valid to 2 July 2019 with a one (1) year extension to 2 July 2020. This time has passed and there is no current commercial lease or other information to demonstrate that the business is located in a regional area. The Tribunal does not have current information that would satisfy it that the nominator’s business is located in a regional area.

29. Accordingly, the requirements of reg.5.19(4)(h)(ii)(A) are not met.

30. Accordingly, the requirements of reg 5.19(4)(h) are not met.

31. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    De-Anne Kelly
    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).